Stephens v. Central of Georgia R. Co.

• Decision Date: 22 December 1978
• Citation: 367 So.2d 192
• Parties: Thomas Jerry STEPHENS v. CENTRAL OF GEORGIA RAILROAD CO. et al. v. JORDAN INDUSTRIES, INC. 77-442.
• Court: Alabama Supreme Court

Page 192

367 So.2d 192

Thomas Jerry STEPHENS v. CENTRAL OF GEORGIA RAILROAD CO. et al. v. JORDAN INDUSTRIES, INC.

77-442.

Supreme Court of Alabama.

Dec. 22, 1978.

Rehearing Denied Jan. 26, 1979.

George L. Stevens, Jr., of Rutledge, Williams, Williams & Norton, Anniston, for appellant, Thomas Jerry Stephens.

Eugene P. Stutts, of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee, Central of Georgia Railroad Company.

Charles C. Pinckney and Lyman H. Harris, Birmingham, for appellee, Jordan Industries, Inc.

BEATTY, Justice.

This is an appeal by plaintiff, Thomas Jerry Stephens, from judgments entered in favor of defendant, Central of Georgia Railroad Company, and third-party defendant, Jordan Industries, Inc. We affirm.

Jordan Industries, Inc. (hereinafter Jordan, Inc.) is chiefly engaged in the pile-driving business. In July and November, 1974 the Central of Georgia Railroad Company (hereinafter the Railroad) contracted Jordan, Inc. to drive old discarded rails into the ground beside the Railroad's tracks to stabilize the roadbeds. These agreements were memorialized in two service orders issued by the Railroad. Jordan, Inc. undertook the work under the first contract with a small crew consisting of a foreman pile driver, a crane operator, and two laborers. The second service order, however, provided for an assistant foreman pile driver, a crane operator, and two laborers. One of the laborers was the plaintiff, Thomas Jerry Stephens. The Railroad under both contracts furnished a representative who was present at all times as the work progressed. It appears that this representative kept up with train movements in the area, and saw that the rails were driven in the proper areas. Jordan, Inc. provided most of the equipment, although the rails to be driven into the ground and a "dolly" on which Jordan, Inc.'s air compressor was transported along the tracks were furnished by the Railroad.

Work under the first contract was uneventful. However, on the last day of the job under the second contract an accident occurred. As the equipment was being placed upon a Jordan, Inc. truck in preparation for the trip home to Ozark, Alabama, the plaintiff climbed onto the air compressor to tie down the engine covers. He apparently slipped and fell to the ground seriously injuring his ankle.

Plaintiff brought the present action against the defendant under the theory that he was an employee of Railroad and therefore was subject to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 Et seq. (1970 ed.). The Railroad filed a third-party complaint against third-party defendant, Jordan, Inc., on the strength of an indemnity agreement between the parties which said that should the Railroad be sued by a Jordan, Inc. employee, Jordan, Inc. would indemnify the Railroad. Trial was had before a jury November 7-10, 1977, after which the jury returned verdicts in favor of the Railroad in the main action, and for Jordan, Inc. in the third-party action. From the judgment for the Railroad the plaintiff appeals.

The Federal Employers' Liability Act, Supra, provides in § 51 that:

Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

That same section defines the term "employee" in this fashion:

Any employee of a carrier, any part of whose duties as such employee shall be (in) the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall . . . be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.

The central issue at trial concerned whether or not the plaintiff was an employee of the Railroad under the terms of this section. It is apparent from the jury verdict that the issue was answered in the negative. The plaintiff on this appeal however contends among other things that the verdict was fatally tainted by the admission into evidence over objection of Jordan, Inc.'s exhibit DJ-6.

Jordan, Inc.'s exhibit DJ-6 was a copy of a letter purportedly prepared by Mr. D. R. Jordan, Vice-President of Jordan, Inc. at the direction of his father, Mr. H. C. Jordan, President of Jordan, Inc. The letter was introduced into evidence to rebut the plaintiff's inference that the change from the "Foreman" classification in the first service order to the "Assistant Foreman" classification in the second service order necessarily implied that the Railroad representative would be the person in control of the Jordan, Inc. crew. This arguably would have made the plaintiff an employee of the Railroad under the terms of the FELA. Exhibit DJ-6 however tended to show that the change in job classifications had in fact already occurred under the first contract and only for reasons of economy. The pertinent text of this exhibit is as follows:

July 23, 1974

Mr. J. C. Waldrop

Division Engineer

Southern Railway System

P. O. Box 1417

Columbus, Georgia 31902

Re: Service Order #905294 Requisition #11532 and 11533 Montgomery District Roadway ,Stabilization

Dear Mr. Waldrop:

Please find enclosed a copy of our Invoice for first week of work in reference to roadway stabilization period.

Please note than Purchase Order calls for a Foreman, Operator and 2 Laborers. We feel this operation can be accomplished with one man less than the Purchase Order allows. Therefore, we will use a classification of Assistant Pile Driver Foreman, which is cheaper than the regular Pile Driver Foreman authorized. We will also decrease number of laborers authorized from 2 to 1.

Plaintiff Stephens lists several reasons why he feels the court erred in overruling the objection to the admission of this exhibit into evidence. The defendant however raises a threshold issue which we must first address: whether or not these matters were properly raised below so that they are before us on this appeal. Brown v. Robinson, 354 So.2d 272 (Ala.1978).

Rule 4(a)(3), ARAP, provides that "(a)ny error or ground of reversal or modification of a judgment or order which was asserted In the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the ARCP." (emphasis added). See also State v. Long, 344 So.2d 754, 757 (Ala.1977). Plaintiff argues that all of the grounds supporting the objection, and ably set out in brief, were raised and argued in chambers, and were ruled upon there. This may well be the case. However, whether or not there were objections and rulings upon those objections in chambers is irrelevant to this appeal when the record does not reflect them. In effect appellate courts are prisoners of the record and the occurrences in chambers and off the record are outside our purview unless the trial court or attorneys make certain that we are privy to them. See King v. Smith, 288 Ala. 215, 259 So.2d 244 (1972). Nor does the plaintiff's contention that these same objections were made in their motion for new trial make them available for review. Even if they were and, again, the record does not so reflect such objections would have come too late for us to review them here. Rule 4(a)(3), ARAP requires that such objections must be asserted in the trial. At the time a motion for new trial is raised under Rule 59, ARCP the trial is over. This is why we call a Rule 59 motion a "post-trial motion." This rule is based on solid policy reasons. The trial court must have an opportunity to pass on these evidentiary issues during the course of the trial. If the rule were otherwise the party raising the issue for the first time after trial might reverse a judgment on a point, which, if presented below the court may have avoided by excluding the evidence, or which the other party might have avoided by waiving the testimony objected to, or by rendering it competent by the introduction of other proof. Cf. T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So.2d 706 (1966) citing Walker v. Blassingame, 17 Ala. 810 (1850). This is also why it has long been settled that in reviewing the action of the trial court in overruling objections we will only consider the grounds of objection assigned when the objection was made, Cook v. Latimer, 279 Ala. 294, 184 So.2d 807 (1966); Marigold Coal, Inc. v. Thames, 274 Ala. 421, 149 So.2d 276 (1963), and why, once a specific objection is made the party will be confined to the particular ground stated in the lower court and will be held to have waived all other grounds of objection. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973); T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So.2d 706 (1966). Hence the defendants' argument is well taken and we can consider on this appeal only those objections raised below. From the record we are able to find three possible objections to the exhibit which we shall address in turn:

A) At a point in the questioning of Mr. H. C. Jordan prior to the letter's introduction the plaintiff objected to testimony concerning a change or changes in the first contract on the ground that pursuant to his December 30, 1975 Request for Production, see Rule 34(a), ARCP, all contract documents under which the plaintiff was injured should have been in his possession. The judge stated that the matter had already been taken up in his office and overruled the objection. We hold that such a ruling was not in error. In brief the plaintiff treats this objection as one also aimed at a violation of the...