Walton v. Lindsay Lumber Co.

• Decision Date: 21 December 1905
• Citation: 145 Ala. 661,39 So. 670
• Parties: WALTON v. LINDSAY LUMBER CO.
• Court: Alabama Supreme Court

39 So. 670

145 Ala. 661

WALTON v. LINDSAY LUMBER CO.

Supreme Court of Alabama

December 21, 1905

Appeal from Circuit Court, Escambia County; J. C. Richardson, Judge.

"Not officially reported."

Action by Tommie Walton, pro ami, against the Lindsay Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Powell & Hamilton, for appellant.

Leigh &amp Leigh and Stevens & Lyons, for appellee.

DOWDELL J.

Before entering upon the trial in the circuit court the plaintiff demanded a struck jury. In response to a question by the court, one of the jurors of the regular panel stated that he was the uncle of the wife of the president of the defendant corporation. The circuit court ruled that the juror was competent and had his name placed on the list of jurors from which the struck jury was to be obtained. To this action of the court the plaintiff excepted. It does not appear that the president of the corporation was a stockholder, or otherwise had any pecuniary interest, in the defendant corporation. While the president of a private corporation may have more and greater powers than another employé, he is, at last, as such, but an agent or employé of the corporation. There is no statute which renders a juror incompetent because he may be related to an officer or an agent of a corporation that is a party to a suit. But we need not determine this question for the reason, if any error was committed in the ruling of the court, it was error without injury.

At the instance of the defendant in the court below, the court gave the general affirmative charge in its favor. If, in the giving of the general charge as requested, no error was committed, then there could have resulted no injury in the ruling as to the competency of the juror. In reality the jury had no function to perform in the trial of the case. rested its case upon the evidence of the plain-The defendant offered no testimony, and tiff. They were instructed to find for the defendant if they believed the evidence, and the result would have been the same if they had not believed the evidence since the duty rested on the plaintiff to show by competent and satisfactory evidence a right to recover. This case is entirely different from the case of Smith v Kauffman, 100 Ala. 408, 14 So. 111. The doctrine laid down in the latter case is without application here. In that case, as stated by the court, the jury had two functions to perform, viz.: (1) To pass upon the credibility of the evidence; (2) to ascertain the amount of the damages. There the duty was upon the plaintiff to show by credible testimony a right to recover, and, furthermore, to establish by the evidence the amount of the damages. Here no such duty rested upon the defendant, and in fact the jury had not the functions to perform as in the case cited.

The complaint, as amended, contained 11 counts. Demurrers were sustained to the second, third, fourth, and fifth. The tenth count was withdrawn by the plaintiff, and the case was tried on counts 1, 6, 7, 8, 9, and 11, and on the plea of the general issue and contributory negligence. No error was committed in sustaining the demurrers to counts 2, 3, 4, and 5. The relationship is not averred, and no duty is shown, by the averments of either the second, third, or fourth counts owing from the defendant to the plaintiff....