Hinton & Sons v. Strahan

• Decision Date: 27 June 1957
• Docket Number: 6 Div. 89
• Citation: 96 So.2d 426,266 Ala. 307
• Parties: HINTON & SONS v. James Clyde STRAHAN.
• Court: Alabama Supreme Court

Page 426

96 So.2d 426

266 Ala. 307

HINTON & SONS v. James Clyde STRAHAN.

6 Div. 89.

Supreme Court of Alabama.

June 27, 1957.

LeMaistre, Clement & Gewin, Perry Hubbard and H. Vann Waldrop, Tuscaloosa, for appellant.

deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellee.

MERRILL, Justice.

Appellant, a partnership operation a dairy, appeals from a judgment against it in the sum of $12,500. The complaint that went to the jury consisted of one count which declared upon an alleged breach of the common law duty to furnish appellee, their employee, with a reasonably safe place in which to work. The count, after alleging that plaintiff was employed by the defendant, avers that plaintiff was manually milking one of appellant's cows in one of the stalls located in appellant's barn, and that appellant negligently failed to provide plaintiff with a reasonably safe place to do and perform the work for which he was employed, and that the cow plaintiff was milking ran upon plaintiff and knocked him into a cement gutter in said barn and, that as a proximate consequence of appellant's said negligence, plaintiff received many injuries.

The appellant pleaded the general issue in short by consent, and this included the pleas of assumption of risk and contributory negligence.

Assignments of error 2 and 3 assert error in the court's refusal to give the general affirmative charge without hypothesis (2), and the same charge with hypothesis (3). Appellant contends it was entitled to these charges under the assumption of risk doctrine, because it is urged that plaintiff's injuries resulted from either an ordinary or extraordinary risk of his employment, and that he continued in the employment with full knowledge of the conditions causing his injury and with an appreciation of the danger therefrom.

The tendencies of the evidence most favorable to the plaintiff were that the cows were ordinarily milked by milking machines; but the one he was milking had recently freshened, and, upon instructions of one of his employers, George Hinton, Jr., the cow was being milked by hand. Plaintiff was sitting on a paint can, and the cow had a chain around her neck which was hooked to a chain which was fastened to a bolt in the wall of the barn. Plaintiff testified that he was furnished one helper and one milking stool, and that the helper was using the milking stool at the time of the injury. Witnesses for both plaintiff and defendant testified that at the time of the injury, prudent dairy operators in Tuscaloosa County with similar dairies provided wood or metal head stanchions for their cows which opened up, let the cow's head in and closed on her neck while she was being milked, and that these stanchions were better and safer than chains for securing a cow. On cross-examination of one of appellant's witnesses, it was adduced that it was dangerous to sit on a bucket to milk a cow, and that prudent dairy operators provided their employees with stools to sit on while milking. There was no evidence that plaintiff was familiar with the standards met by prudent dairy operators in Tuscaloosa County. His experience in dairy work was confined to this dairy where he had worked for over fifteen months prior to his injury.

We think the plea of assumption of risk on the part of appellee was properly submitted to the jury by the trial court who gave a full charge on the plea.

Likewise, we do not think the court should have granted the motion for a new trial on the ground that the verdict of the jury was contrary to the great weight and preponderance of the evidence.

Assignment of error No. 6 complains that the court erred in overruling defendant's demurrer to the complaint. The argued grounds of demurrer were that there were no facts alleged showing a causal connection between defendant's alleged negligence and plaintiff's alleged injuries. Under our system of pleading, the averment that the master negligently failed to furnish or provide a reasonably safe place to work is sufficient, and the most general allegation of default therein is permissible. Birmingham Ry., Light & Power Co. v. Buff, 201 Ala. 94, 77 So. 388; Ragland Brick Co. v. Bell, 197 Ala. 14, 72 So. 380; Citizens' Light, Heat & Power Co. v. Lee, 183 Ala. 561, 62 So. 199; Smith v. Watkins & Donelson, 172 Ala. 502, 55 So. 611; Gray Eagle Coal Co. v. Lewis, 161 Ala. 415, 49 So. 859.

Assignments of error 4 and 5 predicate error upon the court's refusal to give charges 24 and 25, the effect of these charges being that the failure of defendant to furnish milking stools could not be a basis for recovery. It is sufficient to say that the charges were properly refused as being misleading or argumentative, in that each unduly singles out and emphasizes particular facts.

Assignment of error 1 is that the trial court erred in overruling appellant's motion for a new trial. We have already considered the grounds that the verdict was contrary to the weight and preponderance of the evidence.

It is next urged that appellee's counsel made references in argument that none of the four partners has taken the stand as witnesses to deny their liability to the plaintiff. Appellant objected to these references but the objections were overruled. In this action, the trial court did not commit reversible error. In Morris v. McClellan, 154 Ala. 639, 45 So. 641, 645, the court, speaking through Dowdell, J., said:

'* * * It has always been the rule in civil actions that the failure of a party to the suit, when present at the trial, to testify as to a fact in issue, furnished legitimate ground of comment in argument to the jury by the opposite party. * * *'

To like effect, see Martin v. Davis, 224 Ala. 648, 141 So. 667; Wheeler Motor Co. v. Stringer, 222 Ala. 494, 133 So. 10. The issue in the instant case was whether defendant had furnished a safe place for plaintiff to work, and no member of the defendant partnership became a witness, and it appears that at least one of the partners, George Hinton, Jr., was present in court during the trial.

This general rule as to comment in argument on the failure of a party to testify has certain common sense qualifications. They are listed in 31 C.J.S. Evidence § 156 d, page 862. They include--where the testimony of the party is unnecessary, where he has no personal knowledge of the facts in issue, where such facts have been otherwise fully established by depositions, interrogatories or by testimony at a former proceeding, where he is unavoidably absent from the trial, where his mind is impaired or where he is incompetent as a witness. This court has recognized some of these qualifications. In McGar v. Adams, 65 Ala. 106, this court held that a party's failure to testify merely to support uncontradicted evidence, favorable to him, which his adversary introduces, did not give rise to the presumption of the imputation of withholding evidence. In other words, it was unnecessary for the party to testify.

In Pollak v. Davidson, 87 Ala. 551, 6 So. 312, it was held that no unfavorable presumption should have been indulged against the defendant when the testimony showed he had no knowledge of the facts and was in New York at the time of the trial.

Appellant cites the cases of Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662, and City of Bessemer v. Clowdus, 261 Ala. 388, 74 So.2d 259, in support of the proposition that 'a party's failure to take the witness stand is not subject to comment unless it is first shown that the party is present in court and fails to divulge facts that are peculiarly within his knowledge and unknown so fully to any other witness.'

In Alabama Power Co. v. Allen, supra [218 Ala. 416, 118 So. 664], it was said:

'While it is the rule in civil actions that the failure of a party to the suit, when present at the trial, to testify as to a fact in issue, is the subject of comment (Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann.Cas. 305), this general rule has qualifications, and one is that the fact or facts which he fails to divulge or explain are peculiarly within his knowledge, and were not known so fully to any other witness (Wigmore on Evidence, §§ 287-289; Jones on Evidence [3d Ed.] § 21; 22 C.J. 123). * * *'

The sections cited from Wigmore repeatedly stress the fact that the same rule should apply to parties as to other witnesses. The section cited from Jones deals exclusively with calling witnesses other than a party. The citation from Corpus Juris does not support the qualification quoted from the opinion concerning matters 'peculiarly within his knowledge.' That phrase is used in the cited authorities with reference to a party's witnesses and not to the party himself.

But it is clear that a different rule obtains in Alabama. This distinction is made in Martin v. Davis, 224 Ala. 648, 141 So. 667, written by Chief Justice Anderson, the author of the opinion in Alabama Power Co. v. Allen, supra, which case was cited in appellant's brief. That case was followed in City of Bessemer v. Clowdus, 261 Ala. 388, 74 So.2d 259, 265, where, after stating the general rule, the court said: 'That general rule is often qualified in its statement so as to apply when the facts are peculiarly within the knowledge of the witness. Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662.' The court correctly held in Alabama Power Co. v. Allen, supra, that the appellee 'had no better, if as good an opportunity' as the appellant to know one of the principal facts in issue and that the objection to argument of appellant's counsel, commenting on appellee's failure to take the stand was properly sustained. In City of Bessemer v. Clowdus, supra, the court correctly held that the remark of counsel for plaintiff: 'Now, gentlemen of the jury, the city has offered no explanation as to why they allowed this condition,' was not subject to objection, it being a true statement and borne out by the record.

We explain the quoted statements from these...