Huntsville Knitting Mills Co. v. Butner

• Citation: 69 So. 960,194 Ala. 317
• Decision Date: 21 October 1915
• Docket Number: 810
• Parties: HUNTSVILLE KNITTING MILLS CO. v. BUTNER.
• Court: Supreme Court of Alabama

69 So. 960

194 Ala. 317

HUNTSVILLE KNITTING MILLS CO. v. BUTNER.

No. 810

Supreme Court of Alabama

October 21, 1915

Rehearing Denied Nov. 18, 1915

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by Newt Butner against the Huntsville Knitting Mills Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cooper & Cooper, of Huntsville, for appellant.

R.E Smith and S.S. Pleasants, both of Huntsville, for appellee.

MAYFIELD J.

Appellee sued appellant to recover damages for personal injuries to plaintiff's minor son. The gravamen of the cause of action was that defendant employed plaintiff's son in a dangerous business, without the consent of plaintiff. The allegation as to this gravamen is stated in the first count as follows:

"The defendant, its operatives, agents or employés caused one Mason Butner, plaintiff's son, a boy of the age of 15 years and inexperienced, to engage in work for the defendant which was highly dangerous to a person of his youth and inexperience, without the consent, knowledge, or permission of the plaintiff, in consequence whereof the said Mason Butner, while so engaged, was caught in a piece of defendant's machinery known as a wringer, whereby his left arm was twisted and torn from his body, and otherwise bruising, maiming and injuring the said Mason Butner so that he was permanently injured."

The allegation in the other counts on which the trial was had was practically and in effect the same as that of the first. In the second count, the allegation was more specific, but it was voluntarily stricken from the complaint by the plaintiff. This allegation was that:

"Plaintiff's son, of the age of about 15 years, was working in the employment of said defendant in and about the operation of its mill. That the said Mason Butner was engaged by the defendant, its operatives, servants, agents, or employés, to turn ribs, to wash them and carry them to the dryroom; that these were the duties which the said Mason Butner was engaged to perform by the said defendant, its servants, agents, or employés by and with the consent of the plaintiff, his father, but that, on or about said June 16 1914, the said Mason Butner was induced by the defendant, its agents, servants, or employés to leave off said work and to commence and carry on the operation of the wringer, which is a machine operated by the defendant into which wet cloths or cotton goods are placed, and the machine so operated as to throw or drive the water out of said cloth or cotton goods. That while so engaged in the operation of the wringer, the said Mason Butner was caught in said wringer, and his left arm was twisted around the shaft that drives the wringer, and was torn and pulled and wrung from his body, and that he was otherwise bruised, maimed, hurt, and injured, causing him intense suffering, and resulting in his permanent injury."

The undisputed facts, as disclosed by the evidence, were that the plaintiff's son was employed in the defendant's business--the cotton or knitting mill business--and was so employed with the knowledge and consent of the father. The evidence is without dispute that the son was so employed to work in defendant's mill.

The real, the prime contention in the lower court--and it is here renewed--was whether or not the employment authorized the defendant to put the boy at the work of operating a certain machine known as a wringer. The contention of the plaintiff, so far as the evidence shows, is that the employment did not authorize the defendant to put the boy to work at the wringer, while that of the defendant is that it so authorized the defendant. The plaintiff himself testified on this subject as follows:

"I remember the occasion of his going to work there. I was employed by the Huntsville Knitting Company myself, and Mr. Estes, the dyeroom boss, asked me if I could get him a hand, a boy to turn ribs. He said he needed some one to turn ribs very bad; they were getting behind. So my son and I came to the mill the next morning, and my son went ahead of me and saw Mr. Estes. I was standing talking to the boys in front of the door where they turn ribs when Mr. Estes came up and asked me about Mason. I told him, 'Mr. Estes, I will let you have Mason to put to work turning ribs.' I told him, 'Mr. Estes, Mason can turn the ribs for you, but don't put him on the wringer.' Mr. Estes did not make any reply, but nodded his head and walked on. I did not know that my son was at work on the wringer until after the boys came for me and told me his arm was broke. The room where the ribs are turned is not the same room where the wringer is. The ribroom is up stairs and the dyeroom, where the wringer is, is down stairs. The job of turning ribs is not dangerous. Ribs are just a band, something like a hollow pipe, and 10 feet long."

B.M. Estes, defendant's foreman, who employed the boy, testified on the subject in part as follows:

"The way that I happened to employ Mason Butner was that Mr. Newt Butner, his father, came down to the mill and brought the boy. Before this I told him I needed somebody on the rib job. After a few days be brought the boy down there and said, 'Here is a boy to turn ribs for you.' I said, 'All right,' and carried him up and put him on the rib job. I showed him how to turn ribs. That was all there was to it. I did not agree to pay the boy any definite sum of money--only what the job pays. Nothing was said about what I was to pay him. Nothing was said about putting the boy on the wringer. He never told me then nor at any other time. The job of turning ribs means that you have to turn ribs, take them to be washed and while down there in the washroom you have to help wring them."

"I mean to tell the jury that no request or statement

was made by Mr. Butner that Mason should not work on the wringer. All the help I employed, as foreman of the dye department, to turn ribs also carried the goods, as I related, down to the washroom on the elevator and helped to run the wringer. After Mason Butner went to work in the mill, under the contract made by his father, he worked something like 8 or 10 days running the job, that is, turning ribs, washed them, and helped in the washroom, when down there, with the ribs."

The disputed questions were: First, whether or not operating the wringer was a part of the work of "turning ribs," for which latter work the boy was confessedly employed; second, whether or not the father gave specific directions, when hiring his boy, that he should not be worked at the wringer. The evidence was conflicting as to both; and these questions were properly submitted to the jury.

If the jury should find that the father gave no specific directions that the boy should not be worked at the wringer, then another question of fact would be presented, Whether working at the wringer was more dangerous than "turning ribs." The plaintiff proved by John Manning and others--or they were allowed to testify--that running a wringer was more dangerous than "turning ribs." The plaintiff having voluntarily introduced such proof, it was competent and proper for defendant to rebut this evidence if it could, or to prove that it was not dangerous or difficult to operate the wringer; and it offered evidence of this character and for this purpose; but the court declined to allow it to make such proof. In this ruling there was manifest error. In declining to allow the defendant to introduce proof of this character the trial court evidently went upon the theory that the boy was not employed with the consent of the father to operate the wringer, or that the father expressly forbade his being worked at this machine, and therefore that it was immaterial whether it was more dangerous than "turning ribs;" but, as we have shown, the evidence was in conflict as to these questions, and, the plaintiff having introduced proof that it was dangerous and difficult to operate the wringer, and more so than to "turn ribs," the defendant should have been allowed to rebut such evidence.

The particulars of a former difficulty are prima facie not admissible, but where one party has brought out a part of the particulars, the other in rebuttal may bring out all of such particulars. Longmire v. State, 130 Ala. 66, 30 So. 413; 5 Mayf.Dig. 421.

Illegal evidence is admissible to rebut illegal evidence introduced by the opposing party. Longmire v. State, supra; Gordon v. State, 129 Ala. 113, 30 So. 30; Morgan v. State, 88 Ala. 224, 6 So. 761; 5 Mayf.Dig. 421.

There was no error in declining to allow defendant to prove by its superintendent that he would not have employed the boy, had he understood that the boy was not to work at the wringer. He could not thus testify as to his undisclosed intention or motive in making the contract.

Except in matters of science and skill, and some other special cases resting upon peculiar circumstances, the understanding and opinion of a witness is not to be received as evidence. In cases not falling within the exceptions, he cannot be allowed to testify to the import of a word used in a...