Dorsey Trailers v. Sutley, 4 Div. 827

• Decision Date: 22 December 1955
• Docket Number: 4 Div. 827
• Citation: 84 So.2d 122,263 Ala. 693
• Parties: DORSEY TRAILERS, Inc. v. William B. SUTLEY.
• Court: Alabama Supreme Court

Page 122

84 So.2d 122

263 Ala. 693

DORSEY TRAILERS, Inc. v. William B. SUTLEY.

4 Div. 827.

Supreme Court of Alabama.

Dec. 22, 1955.

J. C. Fleming, Elba, for appellant.

C. L. Rowe, Elba, for appellee.

MERRILL, Justice.

This is an appeal from a judgment of the Circuit Court of Coffee County awarding appellee, plaintiff below, $4,000 for damages claimed for alleged paint or lead poisoning, resulting from spraying trailers in an enclosure not properly ventilated. This is a companion case to Dorsey Trailers v. Foreman, 260 Ala. 141, 69 So.2d 459 and the issues and evidence in both cases are substantially the same.

Appellant, both in brief and oral argument, relies principally upon assignment of error No. 6. This assignment relates to an additional oral charge given by the Court to the jury after they had deliberated for several hours and had failed to arrive at a verdict. The jury returned to the court room for additional instructions and the parties and counsel being present, the following transpired:

'Juror Boswell: Well, I think, Judge, what they are trying to get at: Some of them wanted to agree that we couldn't use Dr. Crook's statement in here because they thought it happened before that date we are getting at there, when Dr. Crook examined him, and then he comes up with the date from there on, farther on. I believe that was it.

'The Court: I believe, gentlemen, in view of that disclosure it would probably be fair to say to you this in that light: That you would consider,--certainly could consider Dr. Crook's testimony, and any disclosure given by him of injury prior to one year before the filing of this suit would be barred; but that would certainly not mean that any injury he testified about, if he did testify about any injury, and I have no idea about that, would not be barred, and you would consider it. Is that a fair statement gentlemen?'

It is obvious that the question in the last sentence by the Court was directed to the attorneys rather than to the jury, because the attorney for the plaintiff answered 'yes, sir' and the attorney for the defendant remained silent. The appellant contends that the statement by the court in answer to that made by juror Boswell is 'absolutely in conflict with the original charge' and contains 'two direct statements which are in conflict' and that it was 'calculated to mislead the jury'. With these contentions, we cannot agree.

On the trial, Dr. Crook, a witness for the appellee, testified that he had examined and treated the appellee on October 17, 1948. This date is more than one year prior to the date of the filing of the complaint on October 29, 1949. In addition, Dr. Crook also testified that he had examined the appellee in October 1949, June 1950 and January 1954. In the original charge to the jury, the court explained at length that any injury sustained by the appellee prior to one year before October 29, 1949, would be barred by the statute of limitations, which had been pleaded as a defense by the appellant. The court also gave the following written charges at the request of the defendant:

'4. I charge you gentlemen of the jury, that the plaintiff cannot recover for any damage or injury to him at any time other (than) the period between October 29, 1948...