McRee v. Woodward Iron Co., 6 Div. 193

• Decision Date: 06 January 1966
• Docket Number: 6 Div. 193
• Citation: 279 Ala. 88,182 So.2d 209
• Parties: Elzada Smith McREE, as Administratrix, v. WOODWARD IRON COMPANY.
• Court: Alabama Supreme Court

Page 209

182 So.2d 209

279 Ala. 88

Elzada Smith McREE, as Administratrix, v. WOODWARD IRON COMPANY.

6 Div. 193.

Supreme Court of Alabama.

Jan. 6, 1966.

Rives, Peterson, Pettus & Conway, Birmingham, for appellant.

John H. Morrow and Bradley, Arant, Rose & White, Birmingham, for appellee.

MERRILL, Justice.

This appeal is from a judgment for the defendant, Woodward Iron Company, in a personal injury action brought by plaintiff Tom McRee. Sometime after the verdict and judgment, McRee died and the cause was revived in the name of his widow, who was also his administratrix.

The complaint charged that when the plaintiff, McRee, was injured on September 20, 1960, he was an employee of Sullivan, Long and Hagerty Construction Company, (hereinafter referred to as the construction company), which had been engaged by defendant to unload a railroad car of sand into defendant's sand house, utilizing a mobile crane at defendant's ore mine, known as Pyne Mine in Jefferson County; that the railroad car and the sand house were in close proximity to defendant's uninsulated high voltage electric power line, and while plaintiff was in the railroad car assisting in unloading the sand, some portion of the crane came in contact with the power line causing electricity to be transmitted into the car, as a proximate result of which plaintiff was injured; and that due to defendant's negligence, the place for unloading the car was highly dangerous and unsafe for unloading due to the close proximity of the uninsulated high power transmission line, exposing plaintiff to unnecessary peril and danger.

After the case was tried and judgment rendered, a motion for a new trial was heard, and while it was under advisement, plaintiff died. It was later overruled and this appeal was taken.

The first two argued assignments of error are concerned with the sustaining of objections to the following questions during the voir dire examination of the prospective jurors: (1) Q. 'Now, have any of you gentlemen got a policy of liability insurance with Travelers Insurance Company?', and (2) Q. 'Any of you gentlemen have a policy of insurance of any sort with Travelers?'

Travelers Insurance Company was the defendant's insurance carrier and the jurors were being questioned about their interest or connection with Travelers. We set out the proceedings relating to these rulings:

'MR. BURGE: Any member of your immediate family employed in the Claim Department of the Travelers Insurance Company?

'A JUROR: I have a policy with them.

'MR. BURGE: You have a policy with them?

'A JUROR: Yes, sir.

'MR. RIVES: This is Mister?

'A JUROR: Walter.

'MR. RIVES: You say you have a policy?

'MR. WALTER: Yes, sir.

'MR. BURGE: Does anyone else?

'A JUROR: I have a policy, too.

'MR. BURGE: I will get to the policies in just a minute, let me get the relatives. Anybody have any kinfolks that work in the Claim Department of Travelers?

'Do any of you know personally any of the employees in the Claim Department of the Travelers Insurance Company?

'Have any of you gentlemen ever been employed in the Claim Department of Travelers Insurance Company?

'Have any of you gentlemen ever been employed in the Claim Department of any firm or corporation?

'Now, have any of you gentlemen got a policy of liability insurance with Travelers Insurance Company?

'MR. MORROW: Object to that, if your Honor please.

'THE COURT: Well, I am going to sustain the objection.

'MR. BURGE: Any of you gentlemen have a policy of insurance of any sort with Travelers?

'MR. MORROW: I object to that.

'THE COURT: I sustain the objection.

'MR. BURGE: This is Mister?

'A JUROR: Joe Watson.

'MR. BURGE: Any of you gentlemen have any business contact or business dealings with the Travelers?'

It can be seen that prior to asking the question about liability insurance, plaintiff had already asked and received replies from two jurors that they had a policy with Travelers. Plaintiff was entitled to this information, but we cannot say that he was entitled to confine his question to a liability policy. And the second question to which objection was sustained had also been asked previously in the question 'Does anyone else?'

In New York Times Company v. Sullivan, 273 Ala. 656, 144 So.2d 25, we said:

'Sec. 52, Tit. 30, Code of Alabama 1940, gives the parties a broad right to interrogate jurors as to interest or bias. This right is limited by propriety and pertinence. It is exercised within the sound discretion of the trial court. We cannot say that this discretion has been abused where similar questions have already been answered by the prospective jurors. Dyer v. State, 241 Ala. 679, 4 So.2d 311.'

We cannot say that the trial court abused his discretion in his rulings and he is not subject to be reversed because (1) the question went too far when it included the word 'liability', and (2) the proper question had already been asked and answered.

Appellant argues that the court erred in giving requested charge 22, which reads:

'I charge you, gentlemen of the jury, that a landowner is not liable to an invitee on its premises because of an injury to the invitee resulting from an open and obvious dangerous condition of which the invitee is aware or of which he should be aware in the exercise of reasonable care, and if you are reasonably satisfied from the evidence in this case case that plaintiff suffered his injuries and damages as a proximate result of an open and obvious dangerous condition of which plaintiff was aware or should have been aware in the exercise of reasonable care, then your verdict must be for the defendant.'

Appellant argues that 'this charge leaves one confused as to whether the defendant was attempting to set out (1) a limitation on defendant's duty, (2) a contributory negligence charge, or (3) an assumption of risk charge.'

As to the duty, appellant argues that the charge diminishes the statutory duty imposed in Tit. 26, § 12, Code 1940. But in Foreman v. Dorsey Trailers, 256 Ala. 253, 54 So.2d 499, we said that Tit. 26, § 12 is 'a common law duty enacted by statute, section 12, Title 26, Code, * * *.'

Also, charge 22 substantially follows charge E in Claybrooke v. Bently, 260 Ala. 678, 72 So.2d 412, and a statement of law quoted and approved in Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388. The concluding words of charge E in Claybrooke v. Bently, supra, are '* * * and he (the owner of the premises) cannot be held liable for the death of plaintiff's intestate if the death resulted from a danger which was obvious or should have been observed in the exercise of reasonable care.'

The undisputed facts are that McRee's employer, the construction company, had been performing this identical unloading operation for some six or seven years. A car of sand had to be unloaded in the sand house every one and one-half to two months, and the construction company did it under an annual contract. The work was done under the general supervision of the construction company's superintendent and he knew of the location of the high voltage wires, and Latimer, the operator of the crane on the day McRee was injured, testified that he knew about the wires, their danger and...