Central Iron & Coal Co. v. Hamacher

• Decision Date: 14 January 1918
• Docket Number: 3151.
• Citation: 248 F. 50
• Parties: CENTRAL IRON & COAL CO. v. HAMACHER.
• Court: U.S. Court of Appeals — Fifth Circuit

248 F. 50

CENTRAL IRON & COAL CO. v. HAMACHER.

No. 3151.

United States Court of Appeals, Fifth Circuit.

January 14, 1918

Rehearing Denied March 11, 1918.

Henry A. Jones, of Tuscaloosa, Ala. (De Vane K. Jones, of Tuscaloosa, Ala., on the brief), for plaintiff in error.

George P. Bondurant, of Birmingham, Ala., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and FOSTER, District Judge.

BATTS Circuit Judge.

Suit under the terms of the Alabama Employers' Liability Act was instituted by Mrs. Sarah J. Hamacher, as administratrix of the estate of W. F. Hamacher, against the Central Iron & Coal Company, for the death of W. F. Hamacher. The petition was in six counts, all but one of which, count 4, were eliminated by the rulings of the trial court. The count upon which the trial was had was to the effect that the defendant was engaged in operating a coal mine, and plaintiff's intestate was in the service of defendant that in the discharge of his duties he was in a bin or washer, in which was stored a large amount of coal, when the coal rolled down upon him, smothering and so badly bruising him that he died as a result of the injuries, and that the death was proximately caused by the negligence of some person in the service or employment of defendant, whose name was to plaintiff unknown, who had superintendence intrusted to him and who, while in the exercise of superintendence, negligently ordered plaintiff's intestate to work in the bin. The person who exercised superintendency over the employe, W. F. Hamacher, who was killed, was his brother, Ed. Hamacher. The issues submitted by the trial court to the jury were whether, in the exercise of this superintendence, he gave a negligent order, which had the effect of putting the deceased to work at the bottom of the bin, and whether this was an unreasonably dangerous place for him to work, and whether the deceased was guilty of contributory negligence in working under the circumstances at the place at which he was killed.

One of the principal controversies that arises in the case is whether the trial judge should have permitted the testimony of Ed. Hamacher, the brother of the deceased. This involves the construction of section 4007 of the Alabama Code of 1907, which is to the effect that:

'In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed, or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness, or has been taken and is on file in the cause.

Section 858 of the Revised Statutes of the United States (Comp. St. 1916, Sec. 1464) provides that the competency of a witness to testify in a civil action in United States courts shall be determined by the laws of the state in which the court is held.

The trial judge, in passing upon the questions presented by the statute with reference to the exclusion of testimony, held that Ed. Hamacher, the superintendent, was incompetent to testify with reference to instructions given by him to deceased, but that he was competent to testify to the fact that he was present at the time W. F. Hamacher entered the bin, and as to the conditions existing at the time. Under charge of the court the jury were authorized, from this testimony and other evidence introduced in the case, to infer the fact, essential to the cause of action of plaintiff, that the deceased had been instructed by Ed. Hamacher, the superintendent, to go to work at the dangerous place in the bin at which he was killed. It is insisted by the plaintiff in error, who cites Alabama authorities to sustain its position, that it is just as objectionable for the interested witness to testify to facts from which the transaction between him and the deceased could be inferred as to testify directly to the transaction. It may be that this position is sustained by the authorities. We are inclined, however, to believe that Ed. Hamacher was competent as a witness to detail all that occurred between himself and his deceased brother at the time of the accident.

The purpose of section 4007 is perfectly apparent. In the first place, it was intended to repeal the general inhibition against persons testifying who were interested in the issue to be tried. It then made an exception of testimony with reference to transactions between a person deceased and a person whose testimony was intended to be used in cases defined in the statute. It was conceived to be improper, when the mouth of one of the persons was closed by death, to permit the other party to a transaction to make statements in regard to it which could not be controverted. Its sole purpose was the protection of the estate of the deceased. To so construe the statute as to add to the impossibility of securing the testimony of the deceased an inhibition against receiving the testimony of another by whom his rights could be established would not be to conserve the purposes of the law, but would add to the disability which death imposed a new...