Louisville & N.R. Co. v. Chamblee

• Decision Date: 01 December 1910
• Citation: 171 Ala. 188,54 So. 681
• Parties: LOUISVILLE & N. R. CO. v. CHAMBLEE.
• Court: Alabama Supreme Court

54 So. 681

171 Ala. 188

LOUISVILLE & N. R. CO. v. CHAMBLEE.

Supreme Court of Alabama

December 1, 1910

Rehearing Denied Feb. 16, 1911.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Amelia F. Chamblee, administratrix, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

The fourth count, as amended, is as follows: "Plaintiff suing as administratrix of the estate of W. M. Chamblee deceased, claims of defendant the like sum of $20,000 as damages, for that on, to wit, the 17th day of October, 1907, the defendant was a corporation owning railroad shops in New Decatur, Alabama, and on said date plaintiff's intestate was on the premises of the defendant in its railroad shops in New Decatur, Alabama, under the license of defendant, and while on said premises he was pulled or pushed down by one H. J. Jones, an employé of defendant, and who was acting within the scope of his authority, and was by the said Jones then dragged up the steps and into the office of the master mechanic of the defendant in its said railroad shops, and that said Jones willfully or wantonly pulled or pushed plaintiff's intestate down and dragged him up said steps as alleged; and plaintiff avers that by reason of said act of said Jones her intestate was so hurt and injured that he died on, to wit, October 30, 1907." This count was filed April 7, 1909, and on October 6, 1909, plaintiff amended her complaint so as to strike therefrom counts 1 and 2, which seem to have been filed January 20, 1909.

It was shown that defendant died of strangulation of the bowels, and this is caused by a sudden jar or jerk or outside pressure brought to bear. It seemed from the facts in the case that Chamblee was one of the night watchmen at the railroad shops of the Louisville & Nashville at New Decatur; that the night shift went on about half past 5 o'clock, and that some time just previous to that time Mr. Jones, who was the head watchman, Mr. Chamblee, and another were in consultation at the shop, and that for some reason not stated Mr. Jones and the other grabbed Mr. Chamblee, pulled him in at the door and up the step into the office of the master mechanic, and that he was dragged along the steps upon his stomach; that Jones was chief night watchman, and that he had a right to hire and discharge men, and that all the watchmen were under him. The evidence for defendant tended to rebut this, and also tended to show that there had been a previous operation for appendicitis, or something of that character, and that this caused the strangulation.

John C. Eyster, for appellant.

Callahan & Harris, for appellee.

McCLELLAN J.

Since the ruling in O'Kief v. M. & C. R. Co., 99 Ala. 524, 12 So. 454, it has been established that the general statute of limitation of one year applies to bar a recovery for injury resulting in death, where the action is brought by the personal representative of the servant against the master under the employer's liability statute (Code 1907, §§ 3910-3913). The two readoptions of the pertinent statutes, including the general limitation put upon actions for personal injuries, without change important in this regard, remove the possible inquiry first presented in O'Kief v. M. & C. R. Co. from further investigation. The question is settled as the statutes stand. Where, however, the cause of action declared on by the personal representative of the employé of the impleaded master is not set forth under the employer's liability statute, but is drawn under the homicide act (Code 1907 § 2486). two years "from and after the death of the testator or intestate," by express provision of the homicide act, is the period within which the action must be commenced. This period of two years is of the essence of the newly by the statute conferred right of action, and the plaintiff has the burden of affirmatively showing that his action was commenced within the period provided. It is not a limitation against the exercise of the remedy only. Tiffany's Death by Wrongful Act, § 121; Rodman v. Mo. Pac. Ry. Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 704, 706, 707; The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 30 L.Ed. 358; 8 Am. & Eng. Ency. Law, p. 875; 13 Cyc. p. 339. Accordingly the general statute of limitation of one year against actions for personal injuries though resulting fatally is entirely inapt when sought to be pleaded to an action under the homicide act. Where the injury, resulting in death, is to the servant while engaged in the service of the master, his personal representative may rest his action upon the right and remedy provided by the homicide act; but, when he does so, the right to recover must be determined by the common-law rules, without reference to or reliance upon the employer's liability act. Northern Alabama R. Co. v. Mansell, 138 Ala. 548, 560, 561, 36 So. 459. In such case the servant's personal representative cannot recover if the injury resulting in the servant's death was proximately caused by the negligent conduct or omission of a properly selected or retained fellow servant; since at common law the injured servant assumes on entering the employment the risk of injury from the negligence of such a fellow servant. Northern Alabama Railway Company v. Mansell, supra. If the fatally injured employé was not when injured in the service of the defending master, then obviously the coemployé, where negligent conduct or omission caused his death, could not have been the fellow servant of the fatally injured employé, whatever else may have been the relation of such derelict coemployé to the common employer, and however otherwise the wrong or negligence of the derelict coemployé may have been imputable to the employer. When, under all circumstances, an employé is in the service of the employer, is not susceptible, we think, of reduction to general, governing rule. From a full and careful review of many authorities, it can be said, with a satisfactory degree of assurance of soundness, that actual application of the energy or attention of the employé to the specific duties designated for his performance is not invariably essential to subject the employer and employé to the rules of law, and to the consequences wrought out by the rules of law, applicable to the determination of the rights and liabilities, respectively, of the employé and of the employer where the former suffers injury while actually applying his energy or attention to the service stipulated or required by the employer for his performance. This conclusion has been attained in consequence of the very generally accepted view prevailing, and upon sound reason, we think, with a large number of the courts of this country, in cases where the injured employé was going to or from the place of his employment, or where his actual service had been suspended during the work day or work night, and the question was in many of the cases, whether the cause of the injury was the negligent conduct or omission of a properly selected or retained fellow servant, the risk of injury from that negligent conduct or omission the injured coemployé having at common law assumed. Among the sources of legal information consulted on this subject were 2 Labatt on Master & Servant, §§ 624, 625, 625a, and copious annotations thereto; 2 Bailey on Master & Servants, § 3208 et seq., and notes thereto. In addition to these, reference may be had to Pioneer Mining Co. v. Talley, 152 Ala. 162, 43 So. 800, 12 L. R. A. (N. S.) 861; Washburn v. N. C. & St. L. Ry., 3 Head (Tenn.) 638, 75 Am. Dec. 784; L. & N. R. R. Co. v. Wade. 46 Fla. 197, 35 So. 863. It will be seen from the decisions delivered, and to which we refer above, that each case has suggested to the judicial mind dealing with it the solution either by pronouncement upon the undisputed facts as a matter of law or by the affirmation that the issue was or was not as the case was properly submitted to the jury for their determination.

Unless the evidence upon the issue whether the injured employé was in the service at the time of his injury is one way or the other conclusively in point of fact or from...