Milbra v. Sloss-Sheffield Steel & Iron Co.

• Citation: 62 So. 176,182 Ala. 622
• Parties: MILBRA v. SLOSS-SHEFFIELD STEEL & IRON CO.
• Decision Date: 23 April 1913
• Court: Supreme Court of Alabama

62 So. 176

182 Ala. 622

MILBRA v. SLOSS-SHEFFIELD STEEL & IRON CO.

Supreme Court of Alabama

April 23, 1913

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Levi Milbra, administrator of Edward Milbra, deceased against the Sloss-Sheffield Steel & Iron Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Harsh Beddow & Fitts, of Birmingham, for appellant.

Tillman Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellee.

SAYRE J.

Appellee, being sued, pleaded at the same time a plea in abatement and pleas in bar of the suit, and the issues so raised were submitted together to a jury. More conveniently, perhaps, the two classes of pleas could have been determined separately; the plea in abatement being tried first in order. It was not impossible, however, to try the case on all pleas at once; but in that case the jury should have been instructed, in the event of a finding for defendant, to indicate by their verdict the issue on which they so found, for so only could the exact meaning and effect of such finding be determined and made to appear. As it is, we are unable to say whether the resultant judgment was intended to determine and conclude the merits of the asserted cause of action or only the disability of the plaintiff to maintain the particular suit; but no objection to this feature of the procedure was taken, no suggestion made that the plea in abatement had been waived by the filing of the pleas in bar, no effort made to have the verdict discriminate between the issues submitted, and the court below tried the issues of law and fact as the parties presented them. We must now proceed in the same way.

Plaintiff (appellant) sought to recover damages for the alleged wrongful death of his intestate, those counts which were permitted to go to the jury under the evidence proceeding under the homicide act, section 2486 of the Code. In abatement of the suit defendant pleaded that there was then pending another suit between the identical parties, on the identical cause of action. There was also plea of ne unques administrator. This, though a plea in bar, went only to plaintiff's right to maintain the suit. It did not deny deliction on the part of defendant. On these pleas, as well as on pleas in denial of defendant's wrong and pleas of contributory negligence, issue was joined and the case tried.

On a former appeal in this case the plea in abatement was held good. Sloss-Sheffield Co. v. Milbra, 173 Ala. 658, 55 So. 890. To the same effect we may cite Perkins v. Moore, 16 Ala. 17. The facts upon which this plea and the plea of ne unques administrator rested, and out of which the chief difficulty of this case has arisen, were these: Albert Milbra, a brother of plaintiff administrator, first took steps to have himself appointed administrator of the estate of his father, Edward Milbra, for the purpose of bringing suit against defendant on account of the death of deceased. The testimony tended to show that, through inadvertence or misunderstanding of the attorney to whom he went, a petition was filed on behalf of Albert Milburn for letters of administration on the estate of Edward Milburn, deceased, and letters were so issued designating the administrator and the deceased exactly as they were designated in the petition. Likewise a suit was brought in which plaintiff described himself as Albert Milburn, administrator of the estate of Edward Milburn, deceased. That was the pending suit to which defendant referred in its plea in abatement, while the theory of the plea of ne unques administrator was that the prior issue of letters to Albert Milburn, as administrator of the estate of Edward Milburn, rendered the subsequent letters to plaintiff, Levi Milbra, as administrator of the estate of Edward Milbra, null and void. To establish these pleas defendant was allowed to prove by parol that the letters to Albert Milburn were intended for Albert Milbra, and permitted the jury to find that these letters authorized an administration of the estate of Edward Milbra, deceased. It may be observed, however, that the testimony offered tended only to show the attorney's mistake. There was no evidence to the effect that any of the Milbras were known or called by the name of Milburn, if that be of any consequence in this case, nor any that there was error, clerical or otherwise, in the probate record.

If defendant, instead of putting its plea in abatement into the form of mere conclusions, had pleaded the record of the alleged pending suit as it was without more, "Prout patet per recordum," as the old books put it, it is manifest that on demurrer the plea would have been held bad. For Milbra and Milburn are not idem sonans, and prima facie they describe different persons. Defendant pleaded a record according to its supposed legal effect; but between the plea and the proof of it there was a material and fatal variance which the testimony offered was incompetent to explain away.

"The record imports absolute and complete verity. It is neither to be increased nor diminished by any averment, out of or beyond the record. It is to the record, as the law and the testimony, upon which the pleader refers his claim." Dimick v. Brooks, 21 Vt. 578. And the rule is that what ought to be of record must be proved by the record. Munday v. Vail, 34 N.J.Law, 418; Mondel v. Steel, 8 M. & W. 858. But while the record cannot be contradicted or enlarged, consistently with it, and within it, the parties and subject-matter may be identified. Tarleton v. Johnson, 25 Ala. 300, 60 Am.Dec. 515. A number of our cases to the same general effect are cited by counsel for appellee on their brief.

The question then is, How far, within the principles laid down in the cases referred to, may the defendant go in its effort to eke out by parol a record which on its face does not purport to deny plaintiff's authority to sue, in order to destroy the effect of another record regular on its face, and in perfect accord with the facts, granting that authority to plaintiff? This, in a certain aspect, is a question of due process in...