Alabama Clay Products Co. v. Mathews, 6 Div. 333.

• Decision Date: 13 March 1930
• Docket Number: 6 Div. 333.
• Parties: ALABAMA CLAY PRODUCTS CO. v. MATHEWS.
• Court: Alabama Supreme Court

126 So. 869

220 Ala. 549

ALABAMA CLAY PRODUCTS CO. v. MATHEWS.

6 Div. 333.

Supreme Court of Alabama

March 13, 1930

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action for damages for wrongful death by Fannie May Mathews, as administratrix of the estate of Percy B. Mathews, deceased against the Alabama Clay Products Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

The bill of exceptions recites: "Thereupon counsel for the defendant moved the court to qualify the jurors further as to whether or not they are clients or ex-clients, or have ever been clients of Mr. Green or Mr. Perry, or the firm of Perry Mims & Green, or whether or not they are friends of those attorneys. And further to qualify the jurors as to whether or not they are clients or ex-clients of any of the attorneys in the case."

The substance of the complaint is that defendant's officers agents, servants, or employees, acting in the line and scope of authority, etc., negligently permitted a large artificial excavation or pit, of dangerous depth, containing a great amount of hot, scalding, and steaming water, and dangerous to children, to be and remain upon its premises, unguarded uncovered, and in such condition as to be dangerous to children under six years of age; that intestate's stepfather and mother lived in a house on defendant's premises in close proximity to the plant and to this pit; that children of employees were accustomed to play around the defendant's plant and premises, which fact was known to defendant's agents; that the said pit, containing scalding water, was dangerous to children, which fact was known to such agents, etc.; and that plaintiff's intestate, a child under six years of age, fell into said pit and received injuries from which he died.

On cross-examination, the witness Clay Mathews, stepfather of intestate, testified that his wife did not tell him about the accident, among other things, that she was near the pit at the time, and that he did not make a statement to any one that his wife had so stated to witness; that he was talking to a man, and the man asked him something to that effect, but that he did not tell the man that his wife had told him she was present at the pit, etc., when the child fell in.

On redirect examination, the witness was asked, as to this man, "Who did he say he was?" Over defendant's objection, the witness answered: "He said he was the insurance man."

On defendant's motion, the court excluded the answer, instructing the jury not to consider it, but overruled defendant's motion for a mistrial.

ANDERSON, C.J., and SAYRE and BROWN, JJ., dissenting in part.

London, Yancey & Brower and Whit Windham, all of Birmingham, for appellant.

Perry, Mims & Green, of Bessemer, for appellee.

ANDERSON C.J.

Section 8662, new to the Code of 1923, says: "In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict."

This section was not intended as affording a ground of challenge for cause, but to enable counsel to obtain information in order to intelligently strike the jurors. It is evident, however, that the nature and character of questions to be asked were under the province of the trial court, and as to which there is considerable discretion. Rose v. Magro (Ala. Sup.) 124 So. 296. The questions here not only related to whether or not the jurors were clients at present of plaintiff's counsel, but had been at a most remote period, or whether or not there may have been an intimate or mere passive friendship; and we cannot hold that the trial court committed reversible error in this respect. True, we justified the trial court in permitting the solicitor to ask similar questions in the case of Mays v. State, 218 Ala. 656, 120 So. 163, but did not hold that a refusal would have constituted reversible error, just as we would here hold that the trial court would not be reversed had such questions been permitted.

The plaintiff sued as administratrix, and there was no proof of this material fact. It is true that we have several times held that the plea of the general issue was, in legal effect an admission of this fact and relieved the plaintiff from proving same. Espalla v. Richards, 94 Ala. 159, 10 So. 137. But that rule obtains only when the general issue only is interposed or in the absence of a special plea raising this question. Here, while the general issue only was pleaded, it has the recital of leave granted to introduce evidence as to all matter that could have been specially pleaded. In dealing with a plea of this character, it has been held that, where issue is taken on such a plea, the pleader is authorized to avail himself of any special defenses to the same extent as if specially pleaded. Allen v. Standard Ins. Co., 198 Ala. 525, 73 So. 897, and cases there cited; Page v. Skinner (Ala. Sup.) 125 So. 36. The plaintiff having taken issue on this plea, it was incumbent upon her to prove that she was the administratrix of the decedent, and, failing to do so, the defendant was entitled to the general charge as requested. We are unable to hold that the error, in this respect, was cured by Circuit Court Rule 35 because the question was not specially brought to the attention of the trial court. The fact that the plaintiff was the legal representative of the decedent was essential to her right to...