U.S. Cast Iron, Pipe & Foundry Co. v. Warner

• Decision Date: 07 December 1916
• Docket Number: 6 Div. 356
• Citation: 198 Ala. 595,73 So. 936
• Court: Alabama Supreme Court
• Parties: UNITED STATES CAST IRON, PIPE & FOUNDRY CO. v. WARNER.

73 So. 936

198 Ala. 595

UNITED STATES CAST IRON, PIPE & FOUNDRY CO. v. WARNER.

6 Div. 356

Supreme Court of Alabama

December 7, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Alex. Warner against the United States Cast Iron, Pipe &amp Foundry Company for damages while engaging in its employment. Judgment for plaintiff, and defendant appeals. Affirmed.

Estes &amp Jones, of Bessemer, for appellant.

W.J Whitaker and Frank Dominick, both of Birmingham, for appellee.

THOMAS J.

The first count of the complaint was that on which the trial was had. It charged a defect under the first subdivision of section 3910 of the Code of 1907 The defendant pleaded the general issue "and in short by consent with leave for both parties to offer evidence of any matter which, if properly pleaded, would be a good plea, replication," etc.

The proximate cause of the injury is sufficiently averred under the numerous adjudications of this court. Sloss-Sheffield, etc., Co. v. Dobbs, 187 Ala. 452, 65 So. 360; Standard Port. Cem. Co. v. Thompson, 191 Ala. 444, 67 So. 608; Little Cahaba Co. v. Gilbert, 178 Ala. 515, 59 So. 445; Smith v. Watkins, 172 Ala. 502, 55 So. 611; B.T. Co. v. Reville, 136 Ala. 335, 34 So. 981; Wolf v. Smith, 149 Ala. 457, 42 So. 824, 9 L.R.A.(N.S.) 338; Creola Lumber Co. v. Mills, 149 Ala. 474, 42 So. 1019; T.C., I. & R.R. Co. v. Moore, 69 So. 540; Harbison-Walker Ref. Co. v. Ross, 8 Ala.App. 631, 62 So. 1009. The authorities relied on by appellant are not in conflict with this view.

The case of Huyck v. McNerney, 163 Ala. 244, 50 So. 926, expressly states that the count was not drawn under the Liability Act, but was for a breach of the common-law duty in respect to furnishing instrumentalities employed in the business of the master. The court say of the count:

"It is sufficient in its general averments--practically conclusions--of negligence. Laughran v. Brewer, 113 Ala. 509, 21 So. 415, among many others. While sufficient in this particular, it is deficient in other particulars. The measure of the master's duty in this regard is not to furnish good and safe instrumentalities, but that he shall furnish instrumentalities reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances."

The objection made to the count in Sloss-Sheffield Co. v. Mobley, 139 Ala. 425, 36 So. 181, was that, while it ascribed the intestate's death to the negligence of an engineer in charge of an engine, it did not aver "that the engine was on a railway." This fact was essential to a cause of action, under subsection 5 of section 1749 of the Code.

The decision in Louisville & Nashville Railroad Co. v. Stutts, 105 Ala. 368, 17 So. 29, 53 Am.St.Rep. 127, did not turn upon the insufficiency of the count, but upon the fact that the evidence showed that it was not a defective stop block that caused the injury, but rather the weight of the engine and the resistless force with which it was propelled by the engineer. The court said:

"The causal connection between the block and the injury was lacking. Western Railway of Alabama v. Mutch, 97 Ala. 194 [11 So. 894, 21 L.R.A. 316, 36 Am.St.Rep. 179]."

In Wilson v. Louisville & Nashville Railroad Co., 146 Ala. 285, 40 So. 941, 8 L.R.A.(N.S.) 987, the count undertook to aver the quo modo, and the court said:

"The count as to this causal connection goes no further than to aver in a very general way *** that plaintiff suffered said injuries and damage by reason and as a proximate consequence of the violation of said ordinance by the servant or agent of defendant, acting in the scope of his authority. Proceeding, the count sets out the mode or manner of his violation. *** There must have been something done by defendant's servant, to cause the plaintiff's team to run away, and what this act was, as an efficient cause for plaintiff's injuries, and it ought to have been averred. If the count had alleged that, in consequence of the unnecessary 'blowing off of steam' and 'unusual noise' of the engine, the team was frightened and made to run away, inflicting the injuries complained of, a different case would have been presented."

So the case of Louisville & Nashville Railroad Co. v. Williams, 113 Ala. 402, 21 So. 938, but pointed out the insufficiency of a complaint in an action by an administrator against a railroad company for damages for a wrongful act or omission causing the death of plaintiff's intestate for a wrong committed in the state of Tennessee, and contained no averment of the existence of any statute in that state conferring a right or remedy for the recovery of damages for such a wrong.

The second, third, and fourth assignments challenge the action of the trial court in qualifying the jury. The bill of exceptions recites:

"After the court had qualified the jury as to the parties and their attorneys, the plaintiff moved that the court qualify the jury as to the Employers' Liability Assurance Corporation, Limited, on the ground that said Assurance Corporation was a liability insurance company, and the defendant carried a policy with said company by the terms of which said insurance company was obligated to pay any judgment found against the defendant in this suit. The defendant objected to so qualifying the jury on the ground that it was singling out a particular corporation, and because it was just a way of informing the jury that an insurance company was defending the suit, or was carrying the risk for the pipe company, and because it would tend to prejudice the jury against the defendant. The defendant thereupon, and before the court ruled on the above question,

suggested in his argument

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