Empire Coal Co. v. Bowen

• Decision Date: 25 November 1915
• Docket Number: 6 Div. 130
• Citation: 70 So. 283,195 Ala. 348
• Parties: EMPIRE COAL CO. v. BOWEN.
• Court: Alabama Supreme Court

70 So. 283

195 Ala. 348

EMPIRE COAL CO. v. BOWEN.

6 Div. 130

Supreme Court of Alabama

November 25, 1915

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by Louis Bowen against the Empire Coal Company for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Bankhead & Bankhead, of Jasper, for appellant.

Gunn &amp Powell, of Jasper, for appellee.

GARDNER J.

Appellee recovered a judgment against the appellant in the sum of $1,000 as damages for injuries sustained by the plaintiff while he was being transported to his place of work in the mine of the defendant. After the appeal in this cause was taken, the appellee, without the aid, and it seems without the knowledge, or at least consent, of his counsel, for a valuable consideration executed to the appellant a release from any damages to which he might be entitled by reason of said judgment, and also transferred to appellant all his right, title, and interest in and to the same. Counsel for appellee move in the court for a dismissal of the appeal on this account, upon the theory that the parties having settled the litigation it is a moot case, citing 2 Rul.Cas.Law, § 42 and other authorities. It appears without contradiction however, that counsel for appellee who make this motion were the counsel representing the plaintiff in the recovery of said judgment, and that as such counsel they are interested in the judgment, claiming a lien thereon for their attorney's fee, and are claiming a liability on the part of appellant to the extent thereof. Subdivision 2 of section 3011 of the Code of 1907, which deals with the question of the lien of an attorney upon a judgment for money, was given consideration in the recent case of Fuller v. Lanett Bleaching Co., 186 Ala. 117, 65 So. 61. The question there determined is, in our opinion, decisive of the motion in this case against the contention of counsel for appellee. This is not, therefore, a "moot case." See Postal Tel. Co. v. City of Montgomery, 69 So. 428, where some of the authorities in question of what is a moot case are reviewed. The motion to dismiss is overruled.

Plaintiff was on one of the tram cars of the defendant company, being transported to his place of work, when he was struck by a rock projecting from the roof or wall of the mine. The case proceeded to trial upon counts D and E and upon the plea of the general issue and special pleas 2, 4, and 5. Counsel for appellant state in brief that there are involved in this case two "major propositions." The first relates to the insufficiency of the complaint for its failure to allege that the plaintiff was an employé of the defendant. Section 98 of the act entitled "An act to regulate the mining of coal in Alabama" (Acts 1911, p. 534), reads as follows:

"No person, or persons, except those in charge of trips, superintendents, mine foremen, electricians, machinists and blacksmiths and others, when required by their duty shall ride on haulage trips, except a special trip of empty cars may be operated for the purpose of taking employés into and out of the mine, when the distance to and from their work exceeds one mile. No person, excepting trip riders, shall ride on loaded car or cars, and they shall ride only the front or rear end of the trip."

It is therefore insisted that the complaint showed upon its face that the plaintiff was upon said car without right and in violation of said section, as he is not shown or alleged to have been an employé of defendant company. The complaint does show, however, that the defendant company, in connection with the operation of its coal mine, operated a special trip of entry cars over a tram track in said mine for the purpose of transporting the workmen in and out of the mine, and that on the date of the alleged injury the plaintiff was being transported by the defendant in a special trip of cars to his working place in said mine, where plaintiff was to work in and about the business of defendant, and by defendant's invitation. That the statute above referred to was intended for the preservation and protection of human life, and should be so construed that the ends for which it was intended may be accomplished, was held by this court in the recent case of ...