W.T. Smith Lumber Co. v. McLain

• Citation: 202 Ala. 32,79 So. 370
• Decision Date: 06 June 1918
• Docket Number: 3 Div. 336
• Parties: W.T. SMITH LUMBER CO. v. McLAIN.
• Court: Supreme Court of Alabama

79 So. 370

202 Ala. 32

W.T. SMITH LUMBER CO. v. McLAIN.

3 Div. 336

Supreme Court of Alabama

June 6, 1918

Rehearing Denied June 29, 1918

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Action by E.G. McLain against the W.T. Smith Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lane &amp Lane, of Greenville, Page & McMillan, of Brewton, and Stevens, McCorvey & McLeod, of Mobile, for appellant.

Powell & Hamilton, of Greenville, for appellee.

McCLELLAN J.

Action for damages by employé (appellee) against the employer (appellant). The only assignments of error insisted upon in the brief filed for appellant on the submission of the appeal are those numbered 3, 4, and 5, which relate to rulings on objections to the admission of evidence and to the remarks of counsel for plaintiff, as will appear from the quotation to be made from the bill of exceptions. Hence the review of this court must be restricted to these matters. L. & N.R.R Co. v. Holland, 173 Ala. 675, 693, 696, 55 So. 1001; Jebeles, etc., v. Booze, 181 Ala. 462, 62 So. 12; Dickens v. Dickens, 174 Ala. 354, 355, 56 So. 809; Rosenau v. Powell, 184 Ala. 396, 399, 63 So. 1020; W.U. Tel. Co. v. Emerson, 14 Ala.App. 247, 69 So 335; Hamilton v. Cranford, 78 So. 401.

The counts of the complaint that were submitted to the jury ascribed plaintiff's injury to a defect in the condition of the ways, works, etc. (Code, § 3910, subd. 1), or a breach of defendant's common-law duty to afford plaintiff a reasonably safe place in which to perform his work.

According to phases of the evidence, the plaintiff's arm was torn off while he was engaged in replacing a "wedge" to stabilize the "guide" on a planing machine. This "guide" served to so hold the lumber against the knives of the planer as to produce a uniform operation and a uniform result. He testified that the "wedge" moved; that, in the absence of J.M. Pulaski, foreman, it was his duty to replace it; that he ordered the machine stopped that it was stopped; that while he was in the act of replacing the "wedge" the stationary machine involuntarily started, and the cogs caught his sleeve and drew his arm into the moving mechanism, causing his great injury.

J.M. Pulaski, foreman, was examined as a witness for the defendant. On his cross-examination this occurred:

"I have set that wedge. When this wedge came out, I just set it back to its place and drove it in with a hammer. I did not stop the machine. I just stuck it to its place and tapped it with a hammer. I did not stop the machinery, I did it when it was running. I was foreman. It caught my sweater several years ago, not while I was doing that. You did not ask me if it caught my sweater while I was setting that wedge. It caught my sweater when I got over that gear to raise that side head. It was raised with a hand rod, and I reached over it, and it caught my sweater; my own carelessness. I was careless at that time, but I have not been any more. I did not say I had been foreman there for 20-odd years."

Thereupon the plaintiff's counsel propounded to the witness the following question:

"Question: At the infirmary at Georgiana, on the evening of the accident, and after Mr. McLain had been carried down there, didn't you state, in the presence of John Pope and Mr. McLain there, that either on that day or the day before the same cog or gear caught your sweater, and if it hadn't been rotten it might have caught you?"

The defendant objected to the witness answering the said question, on the ground that it called for immaterial and incompetent evidence. This objection of the defendant was overruled by the court, to which action of the court the defendant then and there in open court duly and legally excepted. The witness answered:

"I did not tell them it caught me the day before. I did not make that statement to them. It caught me all right, but not the day before. A man could stick his arm around in a way to get it in there. It would not have caught him anyway, if he hadn't put his arm to it."

The ruling of the court on the objection to the question propounded is made the subject of the third assignment of error.

If the quoted question propounded to this witness could be disassociated from the testimony given by him as disclosed in the above quotation from his cross-examination, the allowance of the question, notwithstanding defendant's objection, would seem to be indubitable error, because of the settled rule that an agent or employé cannot bind the principal of the employer by a recital--not of the res gestae of the event--of a past act or transaction, as illustrated in L. & N.R.R. Co. v. Carl, 91 Ala. 271, 272, 9 So. 334, and Sou. Ry. Co. v. Reeder, 152 Ala. 227, 236, 44 So. 699, 126 Am.St.Rep. 23, and cases cited in them. As appears, the question cannot be disassociated from the matter, testified to by the foreman, preceding it. The witness stated that he had replaced the "wedge" while the machine was running; that this act did not cause his clothing to catch in the mechanism. There was no objection to this testimony. The plaintiff's claim of right to recover involved the immediately opposed theory that to replace the "wedge" exposed the operative to the danger of having the sleeve of his clothing caught in the mechanism, drawing into it the operative's arm. Since the relevancy or materiality of evidence to the issues on a trial does not depend upon which one of the parties litigant offers or seeks to offer it, the harmless experience of the foreman (the witness Pulaski) in replacing the "wedge" while the machinery was running was material, was relevant, and in this instance operated, if credited by the jury, to contradict one of plaintiff's theories of liability. The failure of the defendant to object to the admission of this feature of the foreman's testimony justified the assumption--if at all necessary to the proper decision of the objection to the quoted question to the foreman--that the foreman's harmless experience in replacing the "wedge" while the machinery was running was within the contemplation of rules accurately restated in Sou. Ry. Co. v. Lefan, 195 Ala. 295, 70 So. 249 (headnotes 1 and 2). The question under consideration was designed to elicit testimony that would warrant the introduction of evidence contradictory of the foreman in the particular indicated. This the plaintiff was entitled to do; the matter being, as stated, neither immaterial nor irrelevant. There was no error in overruling the defendant's objection to the question. Necessarily the court did not err in permitting the plaintiff to show, within the predicate laid, that the foreman did make the statement attributed to him in the question quoted ante.

Mr. McGowin, secretary and treasurer of the defendant, was examined and cross-examined. Immediately upon the conclusion of his testimony the bill of exceptions shows this to have occurred:

"After the witness had come from the stand and taken his seat with the lawyers, the following occurred: Mr. Hamilton, one of the counsel for the plaintiff, said: 'I do want to ask you a question: Who is that gentleman sitting by your side?' Mr. Paige, one of the counsel for the defendant, said: 'We object; we think that is very unfair, and the gentleman knows it is incompetent and illegal. I have introduced him to Mr. Hamilton, I will state, and we object to who the gentleman is.' The court thereupon remarked: 'Gentlemen, the remarks of counsel are not to be considered in the case.' Mr. Hamilton said: 'I just want to know if he don't represent the insurance company--I am not the witness--I just want to know whether you represent the insurance company or the W.T. Smith Lumber Company.' Person sitting by Mr. McGowin answered: 'I represent W.T. Smith Lumber Company.' Mr. Hamilton continued: 'He says he don't represent the insurance company; he represents the W.T. Smith Lumber Company.' Mr. Powell, one of the attorneys for the plaintiff, thereupon said: 'Then, if it is to be excluded, we move to exclude what the gentleman said about representing the W.T. Smith Lumber Company.' Judge Lane, one of the attorneys for the defendant, remarked: 'This is very unfair.' The court, turning to the jury, said: 'Gentlemen, the side bar remarks made by counsel on both sides are not evidence in the case, and are not to be taken

as influencing you either one way or another in arriving at what you believe to be the truth because what you decide from the testimony in this case is to be taken from the evidence as it comes to you from the witness stand.' The defendant thereupon rested its case."

Subsequently, before the jury was instructed by the court, or retired, the bill of exceptions records this:

"The defendant thereupon stated to the court as follows: 'There is another motion we want to present to the court at this time. We

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