Alabama Fuel & Iron Co. v. Denson

• Decision Date: 26 October 1922
• Docket Number: 7 Div. 204.
• Citation: 208 Ala. 337,94 So. 311
• Parties: ALABAMA FUEL & IRON CO. v. DENSON.
• Court: Alabama Supreme Court

94 So. 311

208 Ala. 337

ALABAMA FUEL & IRON CO. v. DENSON.

7 Div. 204.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Shelby County; A. B. Foster, Judge.

Action for damages by James W. Perkins, administrator of Kendral L Perkins, deceased, against the Alabama Fuel & Iron Company W. A. Denson, intervening. From a judgment for intervener defendant appeals. Affirmed.

Percy, Benners & Burr, of Birmingham, for appellant.

Brown & Denson, of Birmingham, and Longshore, Koenig & Longshore, of Columbiana, for appellee.

SAYRE J.

Appellee, proceeding to enforce the lien vested in attorneys at law by section 3011 of the Code of 1907, filed his intervention and recovered judgment against appellant. The facts necessary to an understanding of the case are sufficiently stated in the report of a former appeal. Denson v. Alabama Fuel & Iron Co., 198 Ala. 383, 73 So. 525.

Appellant now renews its contention that, in the absence of actual knowledge on the part of the defendant, the filing of a complaint does not vest in the attorney a lien upon the "suit" unless and until service of summons has been perfected and so the lis pendens established. This contention is based upon the fact that the section in question is a literal reproduction of the statute of Georgia (Fuller v. Lanett Bleaching Co., 186 Ala. 118, 65 So. 61) which, before its adoption here, had been construed in the state of its nativity as intending that to confer a lien upon a suit there must be a suit pending, as distinguished from a suit merely commenced by the filing of complaint, and that a suit is not pending until service of summons has been had upon defendant. The lis pendens doctrine is well stated in Bridger v. Exchange Bank, 126 Ga. 826, 56 S.E. 97, 8 L. R. A. (N. S.) 463, 115 Am. St. Rep. 118. For a statement of its application in Georgia to cases arising under the parent statute, in connection with provisions similar to sections 4853 and 3092 of the Alabama Code, see McClendon v. Hernando Phosphate Co., 100 Ga. 219, 28 S.E. 152; Florida Central v. Ragan, 104 Ga. 353, 30 S.E. 746; and Branch v. Bank, 50 Ga. 416. But the doctrine of presumed adoption is by no means conclusive, but persuasive only; the statute adopted must be read in pari materia with other provisions of the local law-in this case section 4853 of the Code-and this court, so considering the question now at issue, held that the lien of an attorney upon a "suit" attaches upon the filing of the complaint, thus in effect, as we now understand, holding that the lien attaches to the plaintiff's right of action whenever asserted in the way of a suit commenced by complaint properly filed. From this view of the meaning and purpose of the statute, deliberately adopted, the court is unwilling now to depart.

Appellee's petition for intervention alleged that defendant, with full knowledge-meaning, as we conceive, nothing more than knowledge-of the pendency of plaintiff's suit, settled said suit with plaintiff without satisfying appellee's lien, and upon this allegation, in connection with evidence tending to show that defendant settled with plaintiff after suit commenced by complaint filed, but without actual knowledge of that fact and before the service of summons, is founded the argument for error in the court's refusal to instruct the jury, in substance, that if the facts were found in agreement with the tendency of defendant's evidence appellee was not entitled to recover. Touching this subject, the court also charged the jury that if defendant had actual knowledge of facts which ought to have stimulated inquiry which, if pursued, would have led to actual knowledge of the filing of the suit, then "that would have been knowledge or notice of the filing of the suit within the meaning of the law and the allegations of the petition." It will be observed, of course, that, according to the law of the decisions heretofore made, the proof being without dispute that the settlement between plaintiff and defendant had been made after the filing of plaintiff's complaint, defendant's actual knowledge of the filing of the complaint, or the lack thereof, was, as matter of uncomplicated law, quite immaterial, and the court's instruction with reference thereto a harmless abstraction. But parties have the right to try their causes upon issues of their own selection, and judgment must be pronounced in accordance with the issues so made between the parties. Glass v. Meyer, 124 Ala. 334, 26 So. 890. Appellant's insistence therefore is that, intervener having alleged that defendant had knowledge-or full knowledge-of the fact that he had brought suit for plaintiff, intervener thereby assumed the burden of proving defendant's actual knowledge, without which proof intervener could not prevail. The purpose of the rule requiring correspondence between pleading and proof is well understood; it is that the adversary party may be advised of what he will be called upon to answer and to preserve a record as a protection against another suit involving the same rights. Bowie v. Foster, Minor, 264. But nothing more than substantial conformity is required. Atlantic Coast Line v. Dahlberg Brokerage Co., 170 Ala. 623, 54 So. 168. We would not overlook the difference between actual and imputed knowledge or notice. For some purposes the difference is important. But here, it will be noted, the averment is not of actual knowledge, but of full knowledge, meaning, as we have said, merely knowledge. Conceding for the argument the materiality of the averment notwithstanding appellee had already stated facts which authorized him to further prosecute the suit despite the settlement, our judgment is that in the circumstances here shown all the purposes of the rule of conformity were served by the allegation of knowledge. Johnson v. Gebhauer, 159 Ind. 271, 64 N.E. 855. Assuming the pendency of a proper controversy as to whether defendant had actual knowledge of plaintiff's suit or only such knowledge as could be imputed by reason of the actual knowledge of facts which would have led an ordinarily prudent person to knowledge, the legal effect was the same in either case.

There was no error in the action of the court overruling appellant's demurrer to count 5 of the complaint. The main argument against this count is that its allegations fail to show defendant's duty to conserve the safety of plaintiff's intestate. Pennsylvania Coal Co. v Bowen, 159 Ala. 165, 49 So. 305, is cited. The duty of the defendant to exercise reasonable care in the selection of competent miners in order to conserve the safety of plaintiff's intestate is, we think, sufficiently shown by the allegations of this count to the effect that said intestate was killed by an explosion in defendant's mine while in the employment of this defendant and engaged in the active performance of the duties of said employment. From this relation and the circumstances alleged the law infers the duty. It is true that, to recover against the employer on account of the employment of incompetent servants, it is necessary to prove that the master knew the incompetency of the servant, or by the exercise of reasonable diligence could have ascertained that fact, as the opinion in Pennsylvania Coal Co. v. Bowen, supra, states; but the statement is of the burden of proof. So far as concerns the matter of allegation, the case referred to-the original record of which has been examined-seems to be an authority sustaining the ruling of the trial court in this cause. The text of 26 Cyc. 1393, 1394-evidently the text to which the court referred with...