De Soto Coal Mining & Development Co. v. Hill

Citation188 Ala. 667,65 So. 988
Decision Date21 May 1914
Docket Number767
CourtAlabama Supreme Court
PartiesDE SOTO COAL MINING & DEVELOPMENT CO. v. HILL et al.

Rehearing Denied July 2, 1914

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Bill by the De Soto Coal Mining & Development Company against Jim Hill and another, to enjoin a judgment at law. From a decree sustaining demurrers to the bill, complainant appeals. Affirmed.

The bill alleges that:

Orator is a corporation existing under the laws of the state of Alabama, with its principal office at Birmingham, and that defendants are, respectively, Jim Hill, a minor, and H.J Hill, an adult, who acted as his next friend in procuring the judgment herein sought to be enjoined; that orator is authorized by its charter to engage in the business of mining, and has been and is now engaged in the operation of a coal mine in Jefferson county, and that Jim Hill on December 7, 1910, while being employed as a trapper in its said mine and while getting off the car, fell and cut his knee on some kind of sharp rock or other substance, and the wound thereafterwards, by some means unknown to orator, became infected, and it became necessary for defendant to come to a hospital at Birmingham and have an operation performed removing the knee joint. Thereafter, on March 4, 1911, said minor by his next friend, H.J. Hill, filed a suit against orator in the city court of Birmingham, claiming $40,000 as damages for said injury. [ Here follows a history of the trial as to the pleadings, and as to the striking of complaint and the final issues made up, all of which are set out as exhibits to the bill.]
Orator further avers that at the conclusion of the evidence and argument, plaintiff through his attorney abandoned all of the counts of said complaint as amended except the first sixth, seventh, and eighth, relying on the employment of plaintiff in violation of section 1025 of the Code, and disclaiming any right to recover except on said count. The jury trying the cause returned a verdict in favor of plaintiff for the sum of $5,000, and judgment was entered accordingly. [ Here follows a history of the motion to set side the judgment, the court's orator overruling the motion, the preparation of the bill of exceptions, the appeal to the Supreme Court, and its judgment, together with an application for rehearing, and the overruling of same, all of which are made exhibits.] It is further averred that the judgment was entered in said cause on testimony offered by plaintiff, which your orator could not rebut, to the effect that the minor plaintiff was under 14 years of age at the time of the injury, but since the trial of said cause and a motion for a new trial, it has discovered evidence which shows that plaintiff in fact was more than 14 years of age at the time of the injury, and which evidence it is reasonably certain, if not in fact conclusive, would have resulted in a verdict in your orator's favor, had it been produced on the trial of said cause. [ This newly discovered evidence is set forth in the affidavit of M. Aylor and Parton, Joella Jones, William Jones, A.S. Logan and H.H. Coffman, which are made exhibits to the bill.]

It is then averred that the failure to produce said testimony on the trial was due to no fault, neglect, or lack of due diligence or care on its part in the preparation of said cause for the trial, and presenting its motion for a new trial; but on the other hand, it is averred that, immediately after the filing of the suit, it caused a full and complete investigation to be made of all the facts surrounding the accident to plaintiff, including the charges made in said complaint; that neither plaintiff's father nor mother was living at the time of the accident, although his father was living at the time of his employment a few months prior thereto, and it was on the written request of plaintiff's father, representing that plaintiff was more than 14 years of age, that such employment was given him. Plaintiff's stepmother was living, but did not know plaintiff's age of her own knowledge, nor could orator ascertain from any other person any independent knowledge, but in the course of the investigation and preparation for the trial plaintiff's family Bible, and that of his grandparents was exhibited containing entries showing that plaintiff was born on September 26, 1897, making plaintiff under 14 years of age at the time of the accident; that this Bible was exhibited by an uncle of plaintiff, a member of plaintiff's family, and that its superintendent was not an expert in handwriting, and had no reason to suspect and did not suspect, but assumed that said date was correct. It is then averred that at the time of the accident and casualty, orator had in the Maryland Casualty Company of Baltimore an employé's liability policy, protecting it against the payment of damages for injury to its employés that said policy contained a provision that it did not cover liability for an injury to any one employed by orator contrary to law. (Then follows a description of the investigation made by the agent of the Casualty Company similar to that set out as made by the superintendent of orator, and the ascertainment from all the facts that plaintiff was under 14 years of age at the time of the accident, resulting in the finding that the boy was under 14 years of age, resulting in casting the whole defense and burden upon orator. The bill then recites the efforts put forth by orator to ascertain something of the early history of plaintiff, and finally discovering that the boy was born in September, 1896, instead of 1897, making him over 14 years old at the time of his employment, and at the time of the injury, but that at that time no course was open to orator to get the information in the record on the appeal of said cause to the Supreme Court.) It is then averred that the evidence is not cumulative, and that it shows that the cause was without merit, and that plaintiff was in fact more than 14 years old, that the judgment is unjust and unconscionable, and that orator has exhausted every legal remedy open to it, and without the protection of this court, his property will be levied on and sold to satisfy the execution.

The demurrers raise the points discussed in the opinion.

J.T. Stokeley and R.H. Scrivner, of Birmingham, and John R. Tyson, of Montgomery, for appellant.

Vassar L. Allen and James M. Hanby, both of Birmingham, for appellees.

GARDNER J.

By this bill appellant (complainant in the court below) seeks to enjoin the enforcement of a judgment recovered against it by respondent in a suit at law in the city court of Birmingham, and affirmed by this court. De Soto Coal Mining & Development Co. v. Hill, 60 So. 583. The averments of the bill as amended and the demurrers interposed thereto will sufficiently appear in the report of the case. Demurrer to the bill as amended was sustained, hence this appeal.

As grounds for relief, and in support of the equity of the bill, complainant seems to rely upon the averments of newly discovered evidence, knowledge of which was not obtained until after a motion for a new trial had been heard and overruled. There is no fraud or misconduct charged on the part of the appellee, but the bill is, in effect, in short, what has been termed "an application in chancery in the nature of a new trial at law." In support of the equity of the bill, appellant cites three cases from this state as follows: Waters v. Creagh, Executors, 4 Stew. & P. 410; Cox v. Mobile & Girard R. Co., 44 Ala. 611, and Wilson v. Wilson, 21 So. 67. This latter case (reported as a memorandum decision in 113 Ala. 670) was a bill filed to review an equity decree. No demurrer was interposed, the opinion stating that:

"The sufficiency of the bill was not in any wise questioned, but it was treated by the defendant, by filing her answer to and taking issue on it, as altogether sufficient."

The other two cases cited sought the injunction of a judgment at law, and are more nearly in point.

While the exigencies of this case may not require it, as will hereinafter appear, yet due to the importance of the question presented by this record, we deem a brief review of the authorities both proper and timely.

Anciently courts of law did not grant new trials, and in those days courts of equity exercised that jurisdiction over trials at law, and compelled the successful party to submit to a new trial when justice required it. But even then the chancery court proceeded with great caution. The history of the exercise of this jurisdiction over proceedings of courts of law, by courts of equity, by way of injunction, may be found in the note to the case of Oliver v. Pray, 19 Am.Dec. 608, wherein it is shown to have created some unrest and much jealousy of the common-law judges. In the same note (page 609) we find the following quotation:

"Applications to a court of chancery for a new trial at law are in our time very rare. The practice, except in cases most extraordinary, has long since gone out of use, because courts of law are now competent to grant new trials, and are in the constant exercise of that right to a most liberal extent."

On the next page the author of the note cites instances in which the jurisdiction may still be exercised. He states, citing authorities, that in some particular cases a new trial has been decreed, because the evidence of the facts constituting the complete defense was not discovered until after judgment at law and the lapse of time in which he could then move for a new trial, making the following comment:

"In some of these cases it
appeared that the complainant, since the trial at law, had discovered a receipt in full for the demand on which the judgment was rendered against him, but, even in case
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    • United States
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    • April 26, 1934
    ... ... Hogan v. Scott, 186 ... Ala. 310, 65 So. 209; De Soto, etc., Co. v. Hill, 188 Ala ... 667, 65 So. 988; Id., 194 ... ...
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