Moss v. Mosley

Decision Date06 February 1906
Citation148 Ala. 168,41 So. 1012
PartiesMOSS v. MOSLEY.
CourtAlabama Supreme Court

On Rehearing July 6, 1906.

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

"To be officially reported."

Action by W. L. Mosley, as administrator of the estate of George W Mosley, deceased, against L. K. Moss. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action of damages for personal injury. The counts on which issue was joined were counts 1, 2, 3, 4, 5, and 11. Counts 3, 4, 5, and 11 were eliminated by charge of the court, leaving counts 1 and 2. Count 1 is set out in the opinion. Count 2, is as follows: Plaintiff, as the administrator of the estate of George Mosley, claims of the defendant the sum of $10,000 as damages, for that the defendant on, to wit, the 22d day of August, 1902, was engaged in operating a brick works at or near Desoto, Ala in Jefferson county, and that at said time and place plaintiff's intestate, who was a boy of between 13 and 14 years of age, being under the age of 14, and inexperienced was in the employ of said defendant in and about said works and that while engaged at said time and place, plaintiff's intestate was killed. Plaintiff avers that said death was proximately caused by reason of the negligence of a person in the service and employment of the defendant, who had at said time and place superintendence intrusted to him and while he was in the exercise of such superintendence, namely, one G. D. Etter, and consisted in this: That said Etter, knowing at said time and place that plaintiff's intestate was an inexperienced boy in and about said business, and that it was necessarily dangerous for him to work in and about the machinery or moving parts of said brick works, negligently instructed him to work in and about the machinery or moving parts of said brick works, and to perform a dangerous service and negligently permitted or allowed the machinery of said brick works to be run or moved while the plaintiff's intestate was performing said dangerous service, namely, cleaning up about said machinery or moving parts of said works, which was dangerous for plaintiff's intestate to perform, so that, and as a proximate result thereof, plaintiff's intestate was killed as aforesaid to plaintiff's damages as aforesaid. Demurrers were interposed to this count as well as to count 1, but the questions raised thereby are sufficiently set out in the opinion.

The defendant filed special pleas 11, 12, 13, 14, 15, 16, and 17, on which issue was joined as well as the general issue. Plea 11. That the plaintiff's demand is barred by the 12 year statute of nonclaim, for that the same was not presented as a claim against the estate of defendant's intestate for more than 12 months after the grant of letters of administration thereon. (12) That plaintiff's intestate was guilty of negligence which proximately contributed to his injury in that he had sufficient mental capacity to know, and knew or by the exercise of reasonable care could have known that to place his head in the position where it was when he was injured was dangerous, and would result in injury and that negligently placing his head there in said position resulted in said injury. (13) That plaintiff's intestate was guilty of negligence which proximately contributed to his injury in that he had sufficient mental capacity to know and knew or by the exercise of reasonable care and diligence would have known that to place himself in the position in which he was injured would probably result in his injury; that knowing that said machinery was moving he negligently put himself in said position thereby causing his injury. (14) That plaintiff's intestate was guilty of negligence which proximately contributed to his injury in that his injury was caused by his placing himself in close proximity to certain moving machinery when he had sufficient mental capacity to know and knew or, by the exercise of reasonable diligence, would have known the probable consequences of his said act. (15) That plaintiff's intestate was guilty of negligence which proximately contributed to his injury in that such injury was caused by plaintiff's intestate, without necessity therefor, negligently placing his head in such position near said machinery that he was injured thereby, such injury being the probable consequence of his act, and that he had sufficient mental capacity to know or, did know or by the exercise of reasonable diligence, would have known what the probable consequences of his said act would be. (16) That plaintiff's intestate was guilty of negligence which proximately contributed to his injury in that there was a safe way in which to do the work he was doing when injury occurred; that he had sufficient mental capacity to know and knew, or, by the exercise of reasonable diligence, would have known of the danger of doing the work in any other way than the safe way to do the same, and that his injury was caused by his negligent failure to do the same the safe way. (17) That plaintiff's intestate was guilty of negligence which proximately contributed to his injury in that in doing said work he negligently failed to keep himself in such position as to avoid the moving parts of the machinery, that he had sufficient mental capacity to avoid the same, and, by the exercise of reasonable care, could have avoided same, and that his injury resulted from his failure to avoid the same.

Special replications were filed to plea 11. Plaintiff says that he presented said claim against said estate within 12 months after the grant of letters of administration on the estate of said M. A. Moss, deceased, by filing said claim or statement thereof, verified by affidavit in the office of the judge of probate of Jefferson county, Ala., in which said letters were granted duly verified by the oath of the claimant having knowledge of the correctness of the claim, and that the amount claimed was justly due after allowing proper credits. (4) Comes the plaintiff and for further replication to plea 11 of the defendant says that on, to wit, the 2d day of June, 1903, he filed the following statement of said claim in the office of the judge of probate of Jefferson county, Ala., in which court letters of administration on the estate of said M. A. Moss were granted on the 19th day of November, 1902, which said statement and the indorsements thereon are as follows. (Here follows the claim.) And upon the filing of said claim the following docket entry was made upon the docket, kept for that purpose in said court. (Here follows the docket entry.) Plaintiff further avers that after the lapse of 12 months from the grant of letters of administration on said estate, but before the trial of said cause, said W. L. Mosley by leave of the probate court amended the affidavit filed as aforesaid on June 2, 1903, as a claim against the estate of said Moss, in the office of the judge of probate of Jefferson county by filing the following additional affidavit in the office of the said judge of probate in and for said county, state of Alabama, Jefferson county. Personally appeared before me, J. P. Stiles, judge of probate in and for said county and state, W. L. Mosley who being duly sworn, deposes and says that said claim against the estate of M. A. Moss, deceased, is for damages for the death of said George W. Mosley, who was killed while in the employ of said M. A. Moss, in and about the brick works belonging to or being operated by the said M. A. Moss, for the recovery of which damages a suit is now pending by W. L. Mosley as the administrator of the estate of George Mosley, deceased, in the city court of Birmingham, Ala., against the said M. A. Moss at the time of his death, and which is now pending in said court against L. K. Moss, as the administrator of the estate of M. A. Moss, deceased. Affiant further states that said claim for the sum of $10,000 is correct, and that the amount of the claim is justly due after allowing all proper credits and that he, as the administrator of the estate of George Mosley, made diligent inquiry and examination, and that he believes the amount of $10,000, claimed is justly due after allowing all proper credits. Demurrers to these replications were filed. Those to two raising the question of verification. To fourth replication the following: (1) Set out in opinion. (2) For that it does not appear that said claim was duly verified as required by law. (3) For that it appears that said amendment of said claim was made after the expiration of 12 months after the grant of letters of administration on said estate. (4) For that it does not appear that said amendment was made with the permission or by leave of the judge of probate in which the letters were granted or of the said probate court or after notice to the defendant. (5) For that the statute does not apply to demands upon which action is pending at the time of the death of the decedent, as to allowing claims to be amended. (6) For that the statute providing for the presentation of claims against decedent's estates by filing same in the probate court is not applicable to actions revived against an administrator.

The facts as to the bill of exceptions sufficiently appear in the opinion. The court refused to give the defendant the general affirmative charge, and the following written charges requested by him: "(2) Unless you believe from the evidence that the work of cleaning up when performed in the usual way, whether by shovel or otherwise, was necessarily dangerous, your verdict must be for the defendant. (3) The undisputed evidence in this case shows that George Mosley was a bright boy of his age, and had more mental capacity than the average boy of his age. (5) If you believe from the evidence that...

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