Western Union Telegraph Co. v. Howington

• Decision Date: 21 December 1916
• Docket Number: 8 Div. 895
• Citation: 198 Ala. 311,73 So. 550
• Parties: WESTERN UNION TELEGRAPH CO. v. HOWINGTON.
• Court: Alabama Supreme Court

73 So. 550

198 Ala. 311

WESTERN UNION TELEGRAPH CO. v. HOWINGTON.

8 Div. 895

Supreme Court of Alabama

December 21, 1916

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Action by Z.D. Howington against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Gardner and Thomas, JJ., dissenting.

Albert T. Benedict and Francis Raymond Stark, both of New York City and Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellant.

Atkinson & Born, of Atlanta, Ga., and B.H. Sargent, of Russellville for appellee.

McCLELLAN J.

The circuit court of Franklin county gave a judgment against the defendant in favor of plaintiff (appellee) on account of injuries alleged to have been received by him while in the defendant's service. Before this suit was instituted in Alabama the plaintiff had commenced a suit for the same alleged wrong against the same defendant in one of the District Courts of the United States in the state of Georgia. This suit was still pending at the time the action in Alabama was called for trial. The defendant in our courts sought through plea, the abatement of this action in the Alabama court because of the pendency of the action in the United States court in the state of Georgia. The mere pendency of a transitory action, for the same cause between the same parties in another sovereignty is not matter upon which to rest an abatement. Humphries v. Dawson, 38 Ala. 204; Forrest v. Luddington, 68 Ala. 1, 16; M. & C.R.R. Co. v. Grayson, 88 Ala. 572, 578, 7 So. 122, 16 Am.St.Rep. 69; 1 C.J. § 113, pp. 84, 85. The plea was properly stricken. The defendant then sought to have the cause in our courts stayed or continued on the ground of the pendency of the action in the District Court of the United States in Georgia. This presented to the circuit court of this state a question to be resolved by recourse to its sound discretion. 1 C.J. p. 1161 et seq. The provision attempted to be incorporated in our Code,§ 3910 (Gen.Acts 1911, p. 485), whereby an action thereunder was sought to be restricted to the courts of Alabama (Code, § 6115) was, in effect, adjudged vain and annulled by the Supreme Court of the United States in Tennessee Coal Co. v. George, 233 U.S. 354, 34 Sup.Ct. 587, 58 L.Ed. 997, L.R.A.1916D, 685, following and reaffirming the pertinent doctrine of the earlier decision of that court in Atchison, etc., Ry. v. Sowers, 213 U.S. 55, 70, 29 Sup.Ct. 397, 53 L.Ed. 695. The opinion in the George Case carries these very plain expressions:

"But venue is no part of the right; and a state cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction. That jurisdiction is to be determined by the law of the court's creation, and cannot be defeated by the extraterritorial operation of a statute of another state, even though it created the right of action.

"The decision in the Sowers Case [213 U.S. 55, 29 Sup.Ct. 397, 53 L.Ed. 695], however, was not put upon the fact that the suit was based on a common-law liability. The court there announced the general rule that a transitory cause of action can be maintained in another state even though the statute creating the cause of action provides that the action must be brought in local domestic courts."

Our statute law is to be regarded as not now embodying the stated restrictive provision. We have thus made reference to this matter because of the argument, stressed here for the appellant, that this plaintiff became an offender against Alabama's authority by instituting his action outside of Alabama in face of its statutory declaration. Having brought and prosecuted to effect his action in this state, there was little, if any, occasion to consider the point; especially since the provision has been finally concluded to be without the force or effect it was intended to have. The court below correctly exercised the discretion reposed in it in declining, on that account, to suspend the action's progress in that tribunal.

There is another preliminary question which the counsel for appellant press in brief. The plaintiff is a nonresident of Alabama; and the defendant moved the court to require him to give security for the costs of the action. In this connection the bill of exceptions recites:

"Before acting upon the defendant's motion to require the plaintiff to give additional nonresident security for costs, the court ascertained from the clerk of the court that the plaintiff deposited with the clerk of the court $15 in cash the amount required by the clerk of the plaintiff as security by nonresident when the suit was brought. The court further ascertained from the clerk that no witnesses had been subpoenaed in said case, either by plaintiff or the defendant, and that the cost in the case would probably be $30 or $35, where no witnesses had been subpoenaed.

"The court, in response to the foregoing motion, required plaintiff either to give satisfactory bond to secure the costs of the action, or, in lieu thereof, at plaintiff's option to make a cash deposit aggregating $50, defendant duly excepting to so much of said order as authorized plaintiff to relieve himself of the obligation to give security for costs by depositing said sum, and thereafter stated and offered to show to the court that the sum of $50 would not be adequate to reimburse defendant for its costs incurred or to be incurred in the premises.

"The court overruled defendant's motion to require plaintiff to give a bond securing all costs or to give further security in the premises, defendant excepting."

The course taken by the court was expressly authorized by Code, § 3688. Such matters, aside from the right of the defendant to have the costs secured, are largely within the discretion of the trial court. First Nat. Bank v. Cheney, 120 Ala. 117, 23 So. 733. The amount the court required was fixed after inquiry. No witnesses having been subpoenaed by either party, and no showing being then made that subpoenas would be sought or needed for witnesses within this state, the amount of the deposit fixed by the court must be accepted as adequate. Under the applicable doctrine of Meinaka v. State, 55 Ala. 47, 57, 58, Harrison v. State, 78 Ala. 5, 11, and Schieffelin v. Schieffelin, 127 Ala. 14, 33, 28 So. 687, no error can be predicated of the remarks of the court in expressing the ruling on the motion to suspend the progress of the cause. Furthermore, if the delay in taking the exception is ignored, the court removed any possible prejudice by clear instruction of the jury.

According to the bill of exceptions, there was no ruling of the court on the matter of the argument of plaintiff's counsel, in response to the argument of defendant's counsel, on the hearing of the motion to suspend this action because of the plaintiff's suit in the state of Georgia. Hence there is nothing to revise. If, however, there had been a ruling, it seems quite clear that what plaintiff's counsel said to the court, though in the hearing of the jury, was not beyond the range of responsive argument.

The issues submitted were those predicated of the averments of counts 2 and 3. The report of this appeal will reproduce these counts. Under this pleading the plaintiff's reliance for a recovery was placed upon a breach of duty within the fifth subdivision of our employers' liability statute. Code, § 3910. So far as presently important, the statute is as follows:

"When a personal injury is received by a servant or employé in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employé, as if he were a stranger, and not engaged in such service or employment, in the cases following: ***

"(5) When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, electric motor, switch, car, or train upon a railway, or of any part of the track of a railway."

As the plaintiff (appellee) asserts them, the circumstances attending his injury were these: Plaintiff was, when injured actually engaged in the service of the defendant; this service required him to help "crank" a hand car operated by the defendant telegraph company, over the track of the Northern Alabama Railway Company, in the movement of the defendant's employés and materials used by it in the maintenance and repair of its telegraph lines along the railway's right of way; that one Wall was the foreman in charge and control of this hand car and of the employés on it; that within Wall's functions was the operation of the brake on the hand car; that when the hand car, which was then running about 12 miles an hour, reached a point on the track whence there was a downgrade stretch of track and at a time when plaintiff and others theretofore engaged in "cranking" the hand car had released their hold on the handlebar, an approaching train was discovered, and without notice or warning Wall suddenly applied the foot brake, thereby rather abruptly diminishing the speed of the hand car and overbalancing plaintiff, who was standing without guard or support with his back turned in the direction the hand car was moving and from which the train was then, at some distance, approaching; that the hand car had to be removed to clear the track for the trains on the line; that it was customary for the foreman in charge or control of the hand car and operating the brake to give warning when he intended to apply the brake; that the usual way of applying the brake was not to suddenly clamp it down, but to "ease" it on so as to gradually slow the car; that after...