Southern Railway Co. v. Grace

• Decision Date: 05 July 1909
• Docket Number: 13,961
• Citation: 95 Miss. 611,49 So. 835
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY IN MISSISSIPPI v. JOHN T. GRACE

49 So. 835

95 Miss. 611

SOUTHERN RAILWAY COMPANY IN MISSISSIPPI v. JOHN T. GRACE

No. 13,961

Supreme Court of Mississippi

July 5, 1909

FROM the circuit court of Lowndes county, HON. JOHN L. BUCKLEY Judge.

Grace appellee, was plaintiff in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Catchings & Catchings and Z. T. Landrum, for appellant.

The sufficiency of the declaration must be determined by the Alabama statute, inasmuch as plaintiff's injury was received in Alabama.

The very question now before this court was before the supreme court of Alabama in the case of Seaboard Mfg. Co. v Woodson, 10 So. 87.

What was said by the supreme court in that case in construing the statute would seem to be conclusive against the sufficiency of the declaration. The proof required to support the allegations of the declaration does not necessarily involve any showing that the alleged defect arose from or had not been discovered or remedied owing to the negligence of the defendant or of some person in its service and entrusted by it with the duty of seeing that the engine was in proper condition.

In the case of United States Rolling Stock Co. v. Weir, 11 So. 438, the foregoing case was referred to with approval.

In the case of Walton v. Lindsey, etc., Co., 39 So. 671, in condemning a certain count of the declaration in that case the supreme court said: "Furthermore there is no averment or anything equivalent to an averment that a defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in the service of the defendant and entrusted by it with the duty of seeing that the ways and works and machinery were in proper order or condition."

The correct manner of pleading the statute is illustrated in Birmingham Rolling Mill Co. v. Rockhold, 42 So. 96, and in West Pratt Coal Co. v. Andrews, 43 So. 350, it will be seen that the declaration in each of those cases, after averring that the injury resulted from defect in the condition of the ways, works, machinery, etc., concluded by alleging that the defect "had not been discovered or remedied owing to the negligence of defendant or of some person in the employ of defendant intrusted by defendant with the duty of seeing that said ways, works, machinery or plant were in proper condition." Not only is the declaration defective by not making averments required by the statute, but there was no effort made by the proof to bring the case within the Alabama statute. Of course, however, the plaintiff was restricted to such a case as was made by his declaration, and this case being wholly defective he was not entitled to recover. The court therefore erred in granting the instruction requested by the appellee and erred in refusing the eighth instruction asked for appellant, by which the court was asked to peremptorily instruct the jury to find for the appellant.

James T. Harrison, for appellee.

Appellant claimed that appellee's pleadings and proof do not conform to "section No. 3910, of the Alabama statute"--the injury having occurred in that state. Our reply is that, the code in which that section occurs was not adopted until May 1, 1908, and the injury occurred February 22, 1908. The said section is not similar to the section of the previous code, 1896, which was in force when this injury occurred, hence controlling. And the decisions cited by defendant all go further back still--to the code that preceded that that of 1886. Everything including and after the word "providing" is new, but the most important thing is an omission, to wit: the Code of 1896, contained the following words: "he was aware that," and they come just after the word "unless," being the sixth word of the sixth line of the section 3910, as quoted in this brief and made the law to be to wit: "The master or employer, is not liable under this section if the servant or employe knew of the defect or negligence causing the injury and failed in reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master or employer, unless he was aware that the master or employer or such superior already knew of such defect or negligence; nor is the master or employer liable under subdivision 1, unless the defect therein mentioned arose or had not been discovered or remedied owing to the negligence of the master or employer or some person in the service of the master or employer and entrusted by him with the duty to see that the ways, works, machinery and plant were in proper condition." Code of Alabama, 1896, § 1749.

We here see a "distinction with a difference" and a material one at that.

Let us see what the law says in reference to these "motions to exclude testimony," the technical name being "peremptory instructions."

The supreme court of Mississippi has given this class of instructions a quietus, in Bell v. Southern, etc., R. Co., 87 Miss. 234, 30 So. 821.

The supreme court of Alabama has in numerous instances done likewise. Chambliss v. Mary Lee Coal & R. Co., 104 Ala. 655; Louisville, etc., R. Co. v. York, 30 So. 676.

We submit three propositions and prove each, both by the law of Mississippi and Alabama, either of which will destroy his contention.

First, appellant has waived its right to attack the declaration; second, it has mistaken its remedy; third, it has mistaken its time, both in this and the trial court.

"Joinder of issue, upon an issue of fact waives exception to the sufficiency of the pleading." Southern, etc., Co. v. Hunnicutt, 54 Miss. 578.

"Undisposed of pleadings waived by trial on merits under general issue" (as in this case). Georgia, etc., Co. v. Jones, 49 Miss. 81.

"Whatever might be the proper judgment upon a demurrer to a declaration for want of technical form, it is manifest that after plea issue in bar and demurrer to evidence (which is the nature and intent of this motion) it is too late to raise the...