Sullivan v. North Pratt Coal Co.

• Decision Date: 25 November 1920
• Docket Number: 6 Div. 30
• Citation: 205 Ala. 56,87 So. 804
• Parties: SULLIVAN v. NORTH PRATT COAL CO.
• Court: Alabama Supreme Court

87 So. 804

205 Ala. 56

SULLIVAN v. NORTH PRATT COAL CO.

6 Div. 30

Supreme Court of Alabama

November 25, 1920

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by James W. Sullivan against the North Pratt Coal Company. Judgment for plaintiff was set aside on defendant's motion, new trial was ordered, and plaintiff appeals. Affirmed.

Hugo L Black, of Birmingham, for appellant.

Tillman Bradley & Morrow and T.A. McFarland, all of Birmingham, for appellee.

GARDNER J.

This cause was tried upon amended count 10, claiming damages for injuries received by plaintiff as the result of a rock falling from the roof of his room in defendant's mine and count 12, which was not filed until the day of the trial, November 12, 1919, claimed damages for injuries received by a fall as the result of a defective and improperly constructed stretcher. This latter count was rested upon the breach of the statutory duty imposed upon the owner of operator of the coal mine under the provisions of section 93 of the act regulating the mining of coal in Alabama. Acts 1911, p. 519.

As an independent cause of action, under the undisputed evidence in the case, the statute of limitation of one year would be a complete defense to count 12. The question of importance therefore arises as to whether or not the matters as set up in this count relate to the same transaction as those of count 10, and relate back to the time of the filling of the original complaint. Count 10 is based on the falling of a rock in the plaintiff's room in the mine, and count 12 for injuries received by the falling of the stretcher some distance from the mouth of the mine, a short time after he had received the injuries from the falling of the rock. It is readily seen that a defense to count 10 would not be relevant to that of the defective stretcher, and contributory negligence as to one would have no application to the other. Count 12 rests upon the violation of a statutory duty, and we are of the opinion that these two counts do not relate to the same transaction, but are separate and distinct, and that matters set up in count 12 do not relate back, and it was therefore barred by the statute of limitations. Ala. Consol. Coal & Iron Co. v. Heald, 154 Ala. 580, 45 So. 686.

Plaintiff's counsel insists, however, that no demurrer or motion to strike was interposed to count 12 upon the ground of departure, and therefore the question of the statute of limitations has been waived.

While the numerous assignments of demurrer to count 12 do not seem to state this particular ground, yet we are unable to see how this fact could prevent the operation of the statute of limitations, which was pleaded as being embraced within the plea of general issue in short by consent, which was filed in the cause on the same day that count 12 was filed. The defense of the statute of limitations was a matter to be established by the proof as subsequently developed, which disclosed the date upon which the plaintiff reached his majority. We do not consider that the authorities cited by appellant's counsel upon this point militate against this conclusion. The affirmative charge as to count 12 was therefore due the defendant. The verdict for the plaintiff was a general one, and it was defendant's right to have the issue presented by this cause of action eliminated from consideration. Mansfield v. Morgan, 140 Ala. 567, 37 So. 393; Cunninghame v. Herring, 195 Ala. 469, 70 So. 148. We have carefully noted the argument of counsel to the effect that because of the general charge as to this count was requested at the same time other instructions, which assume that the general charge would not be given, were asked of the court, it constituted a waiver on the part of the defendant of his request for the general charge; but we are persuaded that this insistence is without merit. This was but a mere anticipation on the part of the defendant's counsel of an adverse ruling by the court upon his affirmative charge, and in no sense a waiver thereof.

Lastly it is insisted that defendant was estopped from pleading the statute of limitations as to count 12, for the...