St. Louis-San Francisco Ry. Co. v. Kimbrell

• Decision Date: 25 November 1932
• Docket Number: 2 Div. 11.
• Citation: 226 Ala. 114,145 So. 433
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. KIMBRELL.
• Court: Alabama Supreme Court

145 So. 433

226 Ala. 114

ST. LOUIS-SAN FRANCISCO RY. CO. v. KIMBRELL.

2 Div. 11.

Supreme Court of Alabama

November 25, 1932

Rehearing Denied Jan. 27, 1933.

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Action for damages for personal injuries by H. A. Kimbrell against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Defendant's special plea 4 is as follows:

"Comes the defendant in this cause and for special plea to the complaint filed therein and to each count of said complaint, separately and severally, says as follows:

"That at the time plaintiff received the injuries complained of he was in the employ of R. F. Carr Construction Company said R. F. Carr Construction Company being subject to the provisions of article 2 of the Elective Compensation Act [Code 1923, §§ 7543-7597] and that this defendant was at the time of said injuries subject to the provisions of said article 2 of the Elective Compensation Act and that the plaintiff in this cause has elected to receive compensation from said R. F. Carr Construction Company or its insurance carrier, and should be limited in this action to a recovery against this defendant for the aggregate amount of compensation payable under said article 2, together with the costs of this action and a reasonable attorney's fee expended or incurred by him, in the event this defendant is held to be liable in this cause."

The following requested charge was refused to defendant: "6. I charge you, gentlemen of the jury, that if you believe from the evidence that this plaintiff was entrusted with the duty of making the track safe at the place where he was injured and while he was so making the said place safe, or was going to the place to make it safe, and knowing at the time that the place was not safe, and was injured at said place, then in that event, there can arise no liability on the part of the defendant from the unsafe condition of the place where the injury occurred, and if you believe from the evidence this to be a fact then you must find the issue in favor of the defendant."

The following charge was given at the request of plaintiff: "1. I charge you that where the owner undertakes to prepare and furnish the plans and specifications for his contemplated structure and such plans are faulty or defective the deficiencies therein are attributable to the owner; and when the work done in accordance with his defective plans and specifications, introducing a dangerous element in the act of pursuing them, results in injury and damage to persons who assume no risk and who are not contributorily negligent in the premises, the damnifying act or omission of such owner, though effected by the work of the contractor, places him in the category of tortfeasor, and he is liable for the proximately consequent injury and damages."

W. F. Herbert, of Demopolis, and J. F. Aldridge, of Eutaw, for appellant.

George Pegram, of Linden, and Rushton, Crenshaw & Rushton, of Montgomery, for appellee.

KNIGHT J.

This is the third appearance of this case in this court. 221 Ala. 505, 129 So. 274, 275, and 224 Ala. 477, 140 So. 421.

The first assignment of error presents for review here the action of the lower court in overruling the defendant's demurrer to count 3 of the complaint. No argument is here submitted in support of this assignment of error, and, under our uniform ruling, the appellant must be regarded as having waived the same. Futvoye et al. v. Chuites et al., 224 Ala. 458, 140 So. 432; Howell v. Moon, 217 Ala. 421, 116 So. 518; McLendon v. Stough, 218 Ala. 445, 118 So. 647; Ward v. Hood, 124 Ala. 574, 27 So. 245; Ogburn-Griffin Gro. Co. v. Orient Ins. Co., 188 Ala. 218-224, 66 So. 434; Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604.

The bill of exceptions nowhere recites that it contains all the evidence on the trial, and the recitals of the present bill are not inconsistent with a reasonable supposition that other evidence not shown by the bill was offered during the trial of the cause.

In order that we may here consider and determine the propriety of the court's ruling in refusing the general charge requested in its behalf by the defendant, appellant here, it must affirmatively and clearly appear that the bill of exceptions contains all the evidence before the court and the jury. Lamar v. King, 168 Ala. 285, 53 So. 279; Middlebrooks v. Sanders, 180 Ala. 407, 61 So. 898; Southern Mut. Ins. Co. v. Holcombe's Adm'r, 35 Ala. 328; Dickens v. State, 142 Ala. 51, 39 So. 14, 110 Am. St. Rep. 17; Roberts v. Kemp, 218 Ala. 350, 118 So. 656; Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854. Therefore we are not at liberty to review the action of the lower court in refusing the general charge, under either count of the complaint, or under the complaint as a whole, which was requested by the defendant.

The appellant has also submitted an elaborate and carefully prepared brief in support of its sixth assignment of error, which presents for our review the propriety of the court's action in overruling defendant's motion for a new trial. For the failure of the bill of exceptions to show that it contains all the evidence, the appellant can take nothing by this assignment of error.

The ruling of the court in sustaining plaintiff's motion to strike defendant's special plea, which we have numbered for convenience plea 4, and which appears in the report of the case, is made the basis of appellant's second assignment of error. The propriety of the court's action in striking this plea is properly presented for review here. Code, § 9459; Formby v. Whitaker (Ala. Sup.) 142 So. 536. When this plea was filed, this cause had been twice tried in the circuit court, and twice reversed here, and it was not offered until after the third trial had been entered upon and a number of witnesses had been examined. The filing of the plea, at this late stage of the case, was a matter addressed to the sound discretion of the court. In view of the long delay in filing the plea, we cannot affirm that the discretion lodged with the trial court was abused. That additional pleas cannot be filed after the period prescribed by law has expired, or after entry upon the trial, except at the discretion of the trial court, has been repeatedly held by this court, and must now be regarded the settled and established rule prevailing in this state. Craig & Co. v. Pierson Lumber Co., 179 Ala. 535, 60 So. 838; Jones v. Ritter's Adm'r, 56 Ala. 270; Steele v. Tutwiler, 57 Ala. 113; Donald v. Nelson, 95 Ala. 111, 10 So. 317; Foster v. Bush, 104 Ala. 662, 16 So. 625; Walker v. English, 106 Ala. 369, 17 So. 715; Hightower v. Ogletree,

114 Ala. 94, 21 So. 934; Chandler v. Riddle, 119 Ala. 507, 24 So. 498; Lytle v. Bank of Dothan, 121 Ala. 215, 26 So. 6; Davis Wagon Co. v. Cannon, 129 Ala. 301, 29 So. 841; Leader v. Mattingly, 140 Ala. 444, 37 So. 270; Cahaba Southern Mining Co. v. Pratt, 146 Ala. 245, 40 So. 943.

The appellant seeks to predicate error upon the refusal of the court to give, at its written request, charge 6, which is set out in the report of the case. Pretermitting consideration of whether this charge asserts a sound proposition of law, and as to whether the charge, as insisted by appellee, was covered by the court in its oral charge, this court will not reverse the trial court where the charge uses the word "believe" instead of the correct term "reasonably satisfied"; this last term being the appropriate term expressing the degree...