Mount Vernon-Woodberry Mills v. Little

• Decision Date: 12 March 1931
• Docket Number: 5 Div. 72.
• Citation: 222 Ala. 605,133 So. 710
• Parties: MOUNT VERNON-WOODBERRY MILLS v. LITTLE.
• Court: Alabama Supreme Court

133 So. 710

222 Ala. 605

MOUNT VERNON-WOODBERRY MILLS v. LITTLE.

5 Div. 72.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied April 9, 1931.

Appeal from Circuit Court, Tallapoosa County; W. B. Bowling, Judge.

Action for wrongful death by Lula Little, as administratrix of the estate of Graves Little, deceased, against the Mount Vernon-Woodberry Mills. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Charge to deny recovery for wrongful death, if employee was not acting as officer, was properly refused as inviting explanation.

Defendant's demurrer to the complaint contained these, among other grounds:

"1. That said complaint fails to show a cause of action against this defendant."

"4. That said complaint fails to show in what way John Craddock, who is alleged to have caused the death of plaintiff's intestate, was employed or was the employe of the defendant, or in what manner he was acting within the line and scope of his employment at the time he is alleged to have shot plaintiff's intestate."

"5. That said complaint is too vague, indefinite and uncertain to constitute or present a cause of action against this defendant."

Charge 1, given for plaintiff, is as follows:

"The court charges the jury that the burden is upon the defendant under the defendant's plea of self defense to reasonably satisfy the jury from the evidence-First that John Craddock was free from fault in bringing on the difficulty which resulted in the death of plaintiff's intestate; second, that John Craddock was, or reasonably appeared to be in imminent danger of death or of great bodily harm at the hands of plaintiff's intestate, and, third, that John Craddock fired the shot which proved fatal to the plaintiff's intestate in the honest belief that such peril was impending and that it was necessary for him to so shoot in order to save himself from death or great bodily harm; and if the defendant has not reasonably satisfied the jury from the evidence of the existence of each of these elements of self defense, then the jury cannot find for the defendant under its plea of self defense."

Defendant's plea 5 is as follows:

"That at the time the shot was fired that caused the death of plaintiff's intestate, the said plaintiff's intestate, Graves Little, was advancing upon John Craddock, the person who fired said shot, in a hostile and threatening manner and the circumstances were such as to impress the mind of a reasonable man that the said John Craddock was in danger of suffering death or of suffering grievous bodily harm at the hands of the said Graves Little, plaintiff's intestate, and the said John Craddock was so impressed, and he fired the shot under the belief that he was in danger of suffering death or grievous bodily harm at the hands of the said Graves Little, and the said John Craddock was acting in defense of his own person, was acting in self defense, when he fired said shot, and the plaintiff ought not to recover against this defendant."

The following requested charges were refused to the defendant: "3. The court charges you gentlemen of the jury that unless you are reasonably convinced by the evidence that when John Craddock shot Graves Little that the shooting was done in connection with his duties as an employe of the defendant, or that the shooting was a part of his duties as an employe of the defendant, or that he shot the defendant as a part of his duties to his employer you will return a verdict for the defendant."

"4. The court charges you gentlemen of the jury that to entitle the plaintiff to a verdict in this case you must be reasonably satisfied by the evidence that at the time John Craddock shot Graves Little that he was the agent or employe of the defendant, that at the time he fired the shot it was done in the line of duties assigned him, that the act of firing the shot was within the scope of his employment, and that the shot was fired in the accomplishment of the objects."

"5. The court charges you gentlemen of the jury that the evidence in this case fails to show that John Craddock was acting within the line of his duties, or in and about the business or duties assigned to him by the defendant."

"7. The court charges you gentlemen of the jury that if you believe from the evidence in this case that John Craddock was not acting as an officer at the time he shot Graves Little then you should return a verdict in favor of the defendant."

Jas. W. Strother, of Dadeville, and J. Sanford Mullins, of Alexander City, for appellant.

Arthur B. Chilton and Hill, Hill, Whiting, Thomas & Rives, all of Montgomery, for appellee.

BROWN J.

This is an action of trespass on the case by the plaintiff, suing as the personal representative of Graves Little, deceased, under section 5696 of the Code, against the defendant for wrongfully causing the death of plaintiff's intestate. The complaint consisting of a single count, alleges that "to-wit, on the 11th day of April, 1929, one John Craddock, an employe of the defendant, while acting within the line and scope of his said employment, unlawfully shot plaintiff's intestate, Graves Little, with a gun or pistol, and that said gun or pistol wound was the proximate cause of the death of plaintiff's said intestate."

The complaint was not subject to any of the grounds stated in the demurrer, and the demurrer was properly overruled. Southern Railway Co. v. Hanby, 166 Ala. 641, 52 So. 334.

After the plaintiff had offered evidence showing that the defendant was engaged in the business of operating a cotton mill manufacturing cotton goods, and in the mercantile business at Tallassee, Ala., that it owned a cotton mill village which was policed by a deputy sheriff, that Craddock was such deputy sheriff and was carried on the defendant's pay roll and was paid a weekly stipend of $18.90, the court, over the objection of the defendant, without further proof that Craddock was acting within the scope of his employment at the time of the shooting, allowed the plaintiff to offer evidence going to show the circumstances leading up to and attending the shooting; that it occurred in the mill village at the back of the mercantile store, Craddock's presence near the prostrate body of the intestate, and his declaration made immediately after the shooting, "There he is boys, I downed him."

The predicate in connection with the attending circumstances tended to show that Craddock was in and about his master's business at the time of the fatal rencounter, and his declaration in respect thereto was within the res gestæ rule. Williams v. State, 147 Ala. 10, 41 So. 992; Newsom v. State, 15 Ala. App. 43, 72 So. 579; Scipio v. Pioneer Mining & Mfg. Co., 166 Ala. 666, 52 So. 43; Shope v. Ala. Fuel & Iron Co., 195 Ala. 312, 70 So. 279; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Note 55 A. L. R. 1198.

The rule in respect to a motion by the defendant to exclude all of the plaintiff's evidence is that the trial court will not be put in error for refusing the motion, nor will it be put in error for granting it if evidence does not make a prima facie case. Dorough v. A. G. S. R. R. Co., 221 Ala. 305, 128 So. 602, overruling, in this respect, Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70.

Charge 1, given at the request of plaintiff, was, on the authority of Riley v. Denegre, 201 Ala. 41, 77 So. 335, expressly approved in Parke v. Dennard, 218 Ala. 209, 118 So. 396, 400, but it is to be noted that the plea of justification in both of these cases alleged "freedom from fault in bringing on the difficulty" on the part of the defendant, an averment that is not present in the defendant's plea five in this case.

The fact that the plea in the last two cases cited contained the quoted averment, affirmative in form, is the ground upon which the charge was approved. See Murphy v. Coleman, 9 Ala. App. 625, 64 So. 185.

The rule stated in Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16...