Tennessee Coal, Iron & R. Co. v. Hayes

• Decision Date: 25 November 1892
• Citation: 12 So. 98,97 Ala. 201
• Court: Alabama Supreme Court
• Parties: TENNESSEE COAL, IRON & RAILROAD CO. v. HAYES.

12 So. 98

97 Ala. 201

TENNESSEE COAL, IRON & RAILROAD CO. v. HAYES.

Supreme Court of Alabama

November 25, 1892

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by Elbert Hayes, by his next friend, against the Tennessee Coal, Iron & Railroad Company, for personal injuries caused by defendant's negligence. From a judgment rendered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

The complaint contained three counts. The first count alleged that while the plaintiff was in the employment of the defendant, loading a car with coke, another car belonging to the defendant got loose from the person in charge of it, who was also an employe of the defendant, by reason of the fact that it had not a sufficient brake, and struck the car which plaintiff was loading with such great force and violence as that plaintiff was knocked off said car he was loading, and fell between the said cars, which ran over him, and caused such injuries as made it necessary to amputate his leg. The second count based the ground of recovery of the plaintiff on the ground of the negligence of his coemployes, who were defendant's servants or employes in charge of the car. The third count based the ground of recovery upon both the negligence of the defendant in not providing the car that struck the car which plaintiff was loading with sufficient brakes, and also upon the ground of the reckless and negligent management and control of the said car by the servants or employes of the defendant. The defendant pleaded the general issue, and also set up in defense the plea of former recovery in an action which was brought by Randall Hayes as next friend of the plaintiff, Elbert Hayes. There were set out in this plea the complaint alleged to have been filed in said suit, the pleas of the defendant, and the judgment thereon. The other facts attending the pleas are sufficiently stated in the opinion. The plaintiff filed several replications to these pleas, alleging that the judgment alleged to have been recovered in said suit, brought by Randall Hayes as his next friend, was fraudulently procured, and that he (the plaintiff) never authorized Randall Hayes or any one else to bring said suit, and never agreed to the judgment alleged to have been rendered therein. Issue was joined on these replications.

The testimony for the plaintiff tended to show that he worked at the coke ovens of the defendant, under his father, and assisted him in loading cars of the defendant with coke; that his father, Randall Hayes, had been authorized by the superintendent, one Sims, to bring the plaintiff and one of his other sons to the works with him; that it was under this direction of Sims that the plaintiff was employed; that although the plaintiff's name was not on the defendant's pay roll, his pay was delivered to his father, Randall Hayes; that the car which collided with the car which plaintiff was loading was being loaded further up the battery, about 50 yards away; that this car was being loaded by an old man, named Ried, and his son; that it had no brake, and that, in attempting to move the said car, Ried and his son "pinched" the car, and, as it started off Ried and his son undertook to stop it by putting pieces of coke and blocks before it; that, when this car hit the car being loaded by plaintiff, the plaintiff, in his father's absence, had gotten upon the car, to move it further down the battery, for the purpose of getting to another pile of coke to finish loading it; that, when the plaintiff saw the car that was loose coming down the track, he put on the brakes of his own car; and that, the second time his car was hit by the car which had gotten loose, he was knocked off, and fell between them. The testimony for the defendant tended to show that the plaintiff was not in the employment of the defendant, his name not being on the pay roll; that the old man, Ried, was not in the defendant's employ, but was employed by a regular employe of the defendant to assist him in loading the car. There was evidence, however, that the defendant's superintendent of the coke ovens knew that Ried was working there, and his name was on the pay roll. The testimony in behalf of the suit in which the alleged former recovery was had is sufficiently stated in the opinion. On the examination of Randall Hayes as a witness, after having testified that Sims instructed him to bring his sons there to help him, and that he had never seen the old man, Ried there, but he might have been at work in another part of the battery, he was asked, "Did you see Mr. Sims there the morning of the day your son was hurt?" The defendant objected to this question on the ground that it was illegal immaterial, and irrelevant evidence. The court overruled the objection, the defendant excepted, and the witness answered: "I don't know. I don't think I had seen him that morning. I do not know whether Mr. Sims employed this old man or not." The defendant moved to exclude this answer, and duly excepted to the court's overruling his motion. This witness was then asked, "Was this old man loading coke for the same purpose you were loading it, on the same track, and in the same kind of cars?" The defendant objected to this question because it called for illegal, immaterial, and irrelevant evidence, and duly excepted to the court's overruling his objection. The witness answered, "Yes, sir." The defendant moved to exclude this answer, and excepted to the court's overruling his motion. The witness was then asked, "Now, in moving the cars from one pile to another, whose duty was it to move the cars?" The defendant objected to the question, and excepted to the court's overruling his objection. The witness then answered, "On the battery at which we were at work, it was every man's duty." The defendant moved to exclude this answer of the witness, and duly excepted to the court's overruling his motion.

Among other things in the court's general charge, he instructed the jury as follows: "Now, that is the law as to the powers of next friend. He has no more interest in the recovery than a stranger. [He has no power over the cause of action. He has no power, without authority of court, to compromise or settle the cause of action in any way whatever. He could not enter into an agreement with the defendant that would bind the minor.]" The defendant duly excepted to the portion of the general charge copied above that is inclosed in brackets, and also excepted to the following portion of the general charge given by the court: "Now you see, in the light of that principle, it is manifest that this plaintiff, Randall Hayes, had no right to make any agreement with the Tennessee Coal, Iron & Railroad Company, for the payment of $100 or $50 or any other sum of money, and such arrangement as that, so far as the arrangement itself is concerned, is a mere nullity,-it amounts to nothing, and is null and void; and the only way in which such an arrangement can become possessed of any validity would be by the ratification of it by a court of competent jurisdiction, that has all the facts before it." The court also instructed the jury in its oral charge as follows: "Now, then, I charge you that such a transaction as that, unless the court was fully informed of all the material facts of the transaction, so as that the court could have instituted an investigation, and determined whether or not it was for the benefit of the minor that such a settlement be carried out, was of no validity; [that a judgment rendered on such agreement would be null and void, unless the court was informed of the material facts, because the next friend had no right to enter into a compromise of that kind, by which the rights of the minor would be concluded.]" The defendant excepted to that portion of this part of the general charge which is inclosed in brackets. The defendant requested several charges, the first three of which were the general affirmative charge in its behalf upon the respective counts of the complaint. Among the other charges requested by the defendant are the following: (4) "I charge you, gentlemen, that there is no evidence in this case that the person who had charge of and was operating the car which escaped and collided with plaintiff's car was guilty of any negligence in the management of said car." (5) "That if you believe from the evidence that Randall Hayes, as the father of the plaintiff, and as his next friend, agreed with the defendant to settle the claim of plaintiff for fifty dollars, the defendant paying all the costs and expenses of settlement, and the doctor's bill for attendance upon the boy for his injury, and that said Randall Hayes instructed J. F. Martin to bring the suit, and to agree upon the judgment rendered in said case, as shown by the second plea of defendant, and that said Martin, in accordance with the said instruction of the said Randall Hayes, brought said suit and agreed to said judgment, the court rendering said judgment being informed of the settlement and agreement, then I charge that your verdict must be for defendant." (9) "I charge you that Randall Hayes, as the father of the plaintiff, had the right to bring the suit set out in the second plea of defendant, as the next friend of plaintiff. As such plaintiff, he had the right to employ J. F. Martin to bring the suit for him, and had the right to instruct the said Martin to agree upon and take the judgment rendered and set out in said plea; and if you believe from the testimony that plaintiff's said father did request the said Martin to bring said suit, and to agree upon and take said judgment,-the said Martin not in any way fraudulently inducing him to do so, but explaining to him the effect of said judgment,-then I charge you that your...