Fail v. Gulf States Steel Co.
| Decision Date | 23 December 1920 |
| Docket Number | 7 Div. 25 |
| Parties | FAIL v. GULF STATES STEEL CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.
Action by Mattie Fail, as administratrix, and another against the Gulf States Steel Company for damages for death of her intestate. Before trial the damages were settled between the parties, and W.A. Denson, attorney for plaintiff, intervened to recover attorney's fee. From a judgment for defendant he appeals. Affirmed.
W.A Denson, of Birmingham, for appellant.
Hood & Murphree, of Gadsden, for appellee.
This suit was originally brought by the representatives of the estate of L.F. Fail, deceased, against the Gulf States Steel Company and one McEntyre, to recover damages for the death of said deceased while in the employ of said Steel Company, and consisted of one count under subdivision 2 of the Employers' Liability Act. The judgment recovered by the plaintiffs was reversed on appeal to this court. Gulf States Steel Co. v. Fail, 201 Ala. 524, 78 So. 878. Upon remandment of the cause plaintiff amended the complaint, by striking McEntyre as a party defendant, and subsequently, also, added count 2 resting for recovery upon negligence of defendant in failing to furnish decedent a reasonably safe place in which to work. After reversal of the cause plaintiffs reached a settlement with defendant, and accepted a given sum in full satisfaction of the claim, executing a written release, which was pleaded by defendant as in accord and satisfaction.
Plaintiff's attorney then filed his petition for intervention for the purpose of prosecuting the suit to recover attorney's fee. This trial resulted in a verdict and judgment for defendant, from which intervener prosecutes this appeal. Upon the trial of this intervention proceeding the question of liability is to be determined as it would have been in the prosecution of the original suit. Denson v. Ala. Fuel & Iron Co., 198 Ala. 383, 73 So. 525.
A demurrer to the original petition of intervention was sustained, upon the theory that the petition should show that the original suit had been settled. We think this should have been shown, so as to disclose the petitioner's right to intervene, and there was no error in this ruling.
As to the original cause of action, the case was tried upon counts 1 and 2 and the plea of general issue thereto, and pleas of contributory negligence. Count 1 rested for recovery upon the negligence of defendant's superintendent, and appellant insisted that plea 5 was one of assumption of risk, and therefore insufficient as an answer to said count. Standard Steel Co. v. Clifton, 194 Ala. 304, 69 So. 937.
The character of plea, however, is to be determined by the facts set up therein, and, guided by this rule, we are of opinion that plea 5 is merely a plea of contributory negligence, and as such sufficient as against the demurrer interposed thereto. Moreover, the argument of appellant's counsel fails to take note of count 2 to which reference has previously been made. The demurrer is not addressed to this plea specifically as an answer to count 1, and for this reason, also, it would seem that this ground of demurrer would not be well taken.
The defendant also filed special plea B, setting up the full satisfaction of the claim with the representatives of the decedent's estate, and that in the contract of employment of intervener as attorney, it was expressly agreed between the parties that the plaintiffs should retain the right to settle or compromise the cause of action. Demurrer to this plea was properly overruled.
Demurrer was also overruled to pleas C and D. These pleas, in substance, set up that the contract of employment of intervener was champertous and void, in that intervener, who was a stranger to the plaintiff, solicited the employment, and, as an inducement to the contract, guaranteed a verdict of several thousand dollars, and, as further inducement to employment, agreed to support the intestate's widow during the time of employment and the collection of any judgment, and did pay to said widow the sum of $100. That these pleas set up a good defense to this intervention proceeding is quite clear, and needs no discussion or citation of authority, other than sections 2986 and 6312 of the Code of 1907. The issues thereby presented were properly submitted for determination of the jury.
Charges given at the request of the defendant, indicated by the assignments of error 15, 16, 17, 18, 20, and 21, but followed these special pleas, and were correctly given.
Nor was there error in the court's instructing the jury that the plaintiff could not recover in this case, as it was without dispute that they had settled all claim they had. The court in its oral charge had sufficiently explained to the jury that this settlement on the part of the plaintiffs did not preclude a recovery so far as the interest of the intervener was concerned. Other instructions in writing were given that also made this clear to the jury; and, considered in connection with those instructions, we do not think the jury was in the least misled by this charge. Justice Brown dissents, and thinks that this instruction constituted reversible error.
Plaintiff's intestate lost his life by being crushed between two concrete piers while excavating the earth between them. It is the theory of plaintiff that intestate was doing the work as directed by the defendant's superintendent, and that the soil foundation was insufficient for these piers, which weighed more than five tons each, and that the excavation removed the lateral support, and the foundation crumbled in the direction of the excavation, causing the one to topple over against the other. The defendant attempted to show that intestate, contrary to the orders of the superintendent, threw the dirt taken from between the two piers behind the one that toppled over, and that this was the cause of the accident.
Charge D, refused to the appellant, was substantially the same as charge B, treated in Ala. C.C. & I. Co. v. Heald, 171 Ala. 272, 55 So. 181. The majority of the court, consisting of ANDERSON, C.J., McCLELLAN, SAYRE, and SOMERVILLE, JJ., are of the opinion that reversible error should not be predicated on its refusal, and have expressed their reasons in the following language:
The trial court refused to give at appellant's request charge lettered D. It reads:
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