Gulf States Steel Co. v. Jones

• Decision Date: 05 February 1920
• Docket Number: 7 Div. 32
• Citation: 85 So. 264,204 Ala. 48
• Parties: GULF STATES STEEL CO. v. JONES.
• Court: Alabama Supreme Court

85 So. 264

204 Ala. 48

GULF STATES STEEL CO. v. JONES.

7 Div. 32

Supreme Court of Alabama

February 5, 1920

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Neona Jones, as administratrix of the estate of George Jones, against the Gulf States Steel Company for damages for the death of her decedent while in the employment of the defendant. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Hood &amp Murphree, of Gadsden, for appellant.

John H Disque and E.O. McCord, both of Gadsden, for appellee.

McCLELLAN J.

The plaintiff's (appellee's) case was stated in three counts. All of the counts proceeded on the theory that plaintiff's intestate (George Jones) was an employé of the defendant (appellant), and then engaged in its service at the time he was injured. The first count, drawn to state a cause of action under Code, § 3910, subd. 1, and section 3912, avers that Jones was injured on or about July 4, 1917 and that from this injury he died on April 10, 1918. The second count would declare for a breach of the common-law duty to exercise reasonable care and diligence to provide Jones, who is averred to have been thereby proximately caused to lose his life (Code, § 2486), with a reasonably safe place in which to work. Merriweather v. Sayre Mining Co., 161 Ala. 441, 49 So. 916, among others. The third count was withdrawn by plaintiff while the court was delivering its oral charge to the jury.

In the minute entry expressing the court's rulings on demurrers to the complaint, this is recited:

"Thereupon, on agreement between the parties in open court, the pleadings in the cause are in short by consent the defendant pleading contributory negligence and assumption of risk when appropriate, and plaintiff making such replies as are appropriate, with leave to offer in evidence the same as if specially pleaded."

Whether the agreement, as above defined, comprehended a general traverse of the allegations of counts 1 and 2 (that numbered 3 being later withdrawn) may be quite doubtful. In the view taken of the case on other points, it is not necessary to decide that question, which would turn upon a construction of the language quoted, in the available light of the trial court's statement, in the oral charge, that defendant had pleaded "not guilty" to each count of the complaint, thus casting the burden of proof on the plaintiff to sustain the material allegations of her complaint.

Subsequently, on February 24, 1919, the defendant was granted leave to file this "special plea":

"Comes the defendant, for answer to the complaint, and each count thereof, separately and severally, saith that the cause of action stated therein for the death of plaintiff's intestate is barred by the statute of limitations of one year."

In the oral charge the court stated that--

"If the jury believe the evidence, that it is not barred by the statute of limitations."

Exception was reserved to this statement in the oral charge. At the instance of the plaintiff, the court gave a special charge concluding to like effect. The court refused the general affirmative charge, requested by the defendant, concluding against a recovery under count 1; and, also, a like request with respect to count 2.

According to the apt authority of Williams v. A.G.S. Ry. Co., 158 Ala. 398, 48 South. 485,

17 Ann.Cas. 516, the court erred in denying deserved effect to the pleaded statute of limitations as a bar to a recovery under count 1, which was alone referable to the right assured by Code, §§ 3910 (subd. 1) and 3912. It was there held that the cause of action a personal representative might assert under Code, § 3912, accrues at the time the injury, later resulting in death, is suffered, and that under this statute (section 3912) the one-year statute of limitation begins to run from the date of injury, not from the date of the death of the employé. Plaintiff's intestate was injured in the early days of July, 1917, and the action was commenced August 2, 1918,...