J.B. McCrary Co. v. Phillips

• Decision Date: 30 October 1930
• Docket Number: 6 Div. 578.
• Parties: J. B. MCCRARY CO. v. PHILLIPS.
• Court: Alabama Supreme Court

130 So. 805

222 Ala. 117

J. B. MCCRARY CO. v. PHILLIPS.

6 Div. 578.

Supreme Court of Alabama

October 30, 1930

Rehearing Denied Nov. 28, 1930.

Appeal from Circuit Court, Jefferson County, Bessemer Division; Wm Hugh McEniry, Special Judge.

Action for damages by A. S. Phillips against the J. B. McCrary Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

B. F Smith, of Birmingham, and Huey & Welch and W. G. Stone, all of Bessemer, for appellant.

Ross Bumgardner, Ross & Ross, of Bessemer, for appellee.

BROWN J.

The statute, Code 1923, § 8662, confers on the parties a qualified right "to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case," and, "under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict." (Italics supplied.)

This does not mean that the matter inquired about must constitute a legal case for challenge, though such case is within the scope of the inquiry authorized. Mays v. State, 218 Ala. 656, 120 So. 163; Gammill v. Culverhouse, 217 Ala. 65, 114 So. 800; Cooper v. Auman, 219 Ala. 336, 122 So. 351. The clear purpose of the statute is to limit the inquiry to matters that might probably bias the jurors in considering and determining the case. The scope of the inquiry sought and invoked by appellant was "whether or not plaintiff worked with or under" the juror at the plant of the Tennessee Coal, Iron & Railroad Company.

It may be conceded that, if the inquiry had been limited to whether or not the plaintiff worked with the juror-that is, immediately in contact or association with the juror-or if it had been limited to the inquiry whether or not the juror was the immediate superior or foreman of the plaintiff, the inquiry would have been proper, and its denial error. But whether or not plaintiff "worked under" the juror, without being more definite, extended the scope of the inquiry to remote relation, which it cannot be said, with reason, would possibly have had any influence on the juror's deliberations. We are therefore not able to affirm error in respect to the rulings of the court in refusing the inquiry. Alabama Clay Products Co. v. Mathews, 220 Ala. 549, 126 So. 869.

Appellant's major contention is that, inasmuch as the Act approved February 28, 1901, entitled "An Act to make Jefferson county, Alabama, a sanitary district, to establish a sanitary commission therefor, make the commission a body corporate, prescribe its powers and duties and to regulate and provide for sanitation in said county" (Gen. Acts 1900-01, p. 1702), as construed and applied by this court in Jones et al. v. Jefferson County, 206 Ala. 13, 89 So. 174, and Hamilton v. Jefferson County, 209 Ala. 517, 96 So. 628, affords immunity from liability to the county as a governmental agency, of necessity extends such immunity to the defendant while acting for the county, as a contractor in excavating for the sanitary sewer authorized by the act, though in the prosecution of the work it committed a tort resulting in injury to the plaintiff.

This contention is without merit. In the first place, the statute does not purport to extend such immunity; and, in the second, if it did, it would be in conflict with the thirteenth section of the Bill of Rights, which guarantees that "every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay." Const. 1901,§ 13.

The immunity from suit extended by the Constitution to the state does not protect an agent who commits a trespass to the hurt of another. Elmore et al. v. Fields, 153 Ala. 345, 45 So. 66, 127 Am. St. Rep. 31; 25 R. C. L. 407, § 43; Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, 8 L. R. A. 399.

The evidence goes to show that the plaintiff lived in "a house by the side of the road," with his wife and children; that he had lived there for eight years; that he leased from the Tennessee Company, and formerly leased by the year, but, at the time of the injury complained of, leased from month to month, and paid the rent in advance; that he had a fence which inclosed his premises, and that he kept a milk cow inside the inclosure; that the defendant, through its servants, while excavating a ditch along the right of way acquired by the county from the Tennessee Coal, Iron...