Logan v. Central Iron & Coal Co.

• Decision Date: 02 February 1904
• Citation: 36 So. 729,139 Ala. 548
• Court: Alabama Supreme Court
• Parties: LOGAN v. CENTRAL IRON & COAL CO.

36 So. 729

139 Ala. 548

LOGAN v. CENTRAL IRON & COAL CO.

Supreme Court of Alabama

February 2, 1904

Appeal from Circuit Court, Bibb County; John Moore, Judge.

Action by W. H. Logan, as administrator of the estate of William Alford, deceased, against the Central Iron & Coal Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The complaint as originally filed contained three counts. Demurrers were sustained to each of the three counts of the complaint, and thereupon the plaintiff amended his complaint by adding three additional counts numbered 4, 5 and 6. The third count of the original complaint was in words and figures as follows: "(3) And the plaintiff claims of the defendant the further sum of three thousand dollars for that on, to wit, the 12th day of March, 1902, the plaintiff's intestate, William Alford, was killed at Woodstock, Bibb county, Alabama, which death was caused by reason of the negligence of a person, whose name is unknown to plaintiff who was in the service or employ of the defendant, to whose orders or directions plaintiff's intestate at the time of his death was bound to conform, and did conform, and plaintiff alleges that said death resulted from his intestate having so conformed." To this count the defendant demurred upon the following grounds: "(1) Said count does not state any facts showing that the defendant owed plaintiff's intestate any duty at the time he was killed or that the defendant is liable for any injury resulting to plaintiff's intestate from his having conformed to the orders of defendant's agent. (2) Said count avers negligence on the part of defendant's agents or servants as a conclusion of the pleader, and does not state any facts showing that defendant's agents were guilty of negligence. (3) Said count does not allege wherein consisted the alleged negligence of the person whose negligence is alleged to have caused the death of the plaintiff's intestate."

To the counts of the complaint added by amendment, the defendant pleaded 10 pleas. The fourth and eighth pleas were as follows: "(4) The said injuries to plaintiff's intestate resulted from dangers, or risks, incident to the work which the defendant was doing, and plaintiff's intestate voluntarily entered defendant's employment and voluntarily undertook to perform said work; and in so doing, himself assumed the risks incident thereto." "(8) For further plea to said original and amended complaint, and to each and every count thereof, the defendant says that it denies that the plaintiff is administrator of William Alford, deceased."

The substance of the other special pleas is sufficiently shown in the opinion.

To the plaintiff's special replication to the several special pleas, the defendant demurred, among others, upon the ground that said replication is an attempt by plaintiff to impeach collaterally the judgment of a court of competent jurisdiction rendered in favor of his predecessor in the administration of the estate of William Alford, deceased, against this defendant on the same cause of action as is now sued upon. This demurrer to the special replication was sustained. Thereupon, the plaintiff declined to plead further, and a nonsuit with bill of exceptions was taken, and judgment was accordingly rendered in favor of the defendant.

Logan, Van De Graaff & Logan, for appellant.

Henry A. Jones, for appellee.

HARALSON J.

1. The demurrer to the third count of the complaint was properly sustained. One of the grounds of demurrer was, that the count failed to show that defendant owed plaintiff's intestate any duty at the time he was killed, etc. The count does not state that intestate was an employé of the defendant at the time he was killed, nor any fact except, inferentially, that the defendant or its employés owed him any duty.

2. The second assignment of error is that the court overruled the motion to strike pleas 4 and 8. The only error insisted on, as to this ruling is, that "these pleas denied that the plaintiff was the administrator of the said estate" (of William Alford). The fourth plea contains no such denial, and it is not insisted that the overruling of said motion to strike was erroneous for any other reason. A demurrer to plea 4 was interposed by plaintiff and it was sustained by the court. Plea 8 did deny that the plaintiff was the administrator of said deceased. The motion to strike this plea as insisted on is, that it was not sworn to. This was not necessary. The plea of ne unques executor or administrator is a plea in bar, which requires no verification. Code 1896, § 3296; Cotton v. Ward, 45 Ala. 359; Watson v. Collins' Adm'r, 37 Ala. 588.

3. The plaintiff moved to strike pleas 9 and 10, on several grounds set out in his motion therefor. It is sufficient to say of this motion, that for none of the grounds set out in said motion was there error in refusing to strike them. The plaintiff was properly put to his demurrers to these pleas.

4. Demurrers were afterwards interposed to these pleas and also to the fifth plea which was overruled. The fifth plea set up that before the plaintiff was appointed administrator of said estate, and while said Almeta Alford was the administratrix thereof, she instituted in the Tuscaloosa county court, of Tuscaloosa county, Alabama, a suit against the defendant upon the same cause of action as the one here sued on, and recovered in said court, on the 15th day of April, 1902, a judgment against this defendant for the sum of $250, as damages for the same alleged wrongs declared on in this suit, setting out the judgment in full. It is then averred, that at the time said suit was instituted, the defendant had its principal place of business in Tuscaloosa county, Ala., and was there doing business in said county by its agents; that the said court which tried said cause and rendered judgment therein, had jurisdiction of said cause of action, and a right to try said cause and render said judgment; that said judgment has not been reversed or set aside, but that defendant had paid the same, and that said judgment was a complete adjudication of the matters involved in this suit and a complete bar thereto.

The ninth plea set up in substance, that before the plaintiff as administrator had any connection with the estate of the deceased, letters of administration in chief had issued to Almeta Alford, and that plaintiff is only the administrator of such of the goods and assets of said estate, as were not administered on by the said Almeta Alford, while she was the administratrix of...