Buckalew v. Tennessee Coal, Iron & Railroad

112 Ala. 146

Opinion

HEAD, J.

Section 2589 of the Code of 1886 provides that ‘ ‘A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator, or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission or negligence, if it h ad not caused death, ” &c. “ Such action must be brought within two years from and after the death of the testator or intestate.”

The present action is instituted under this statute. There are six counts of the complaint. The wrongs set forth in the first, second and third counts, as constituting the causes of action, and those set forth in the fourth, fifth and sixth counts, are of different natures. In the first class, the facts alleged show trespasses by the defendant upon the person of the intestate, causing his death, for which, had death not ensued, he could have maintained the action of trespass. This results from the allegation that defendant compelled intestate to be in the mine — there being no allegation of facts showing that it was a lawful compulsion. The circumstance that the most material damage sustained resulted from negligence of the defendant, or its servants, did not change the nature of the actionable wrong committed by the defendant. It was the infliction of the unlawful imprisonment which constituted the wrong ; and the fact that inflicting it, and by reason of its infliction, the intestate was subjected to conditions which cost him special injury, cannot alter the nature of the wrong. It was not material what the character of those conditions was, whether negligent or otherwise. Their existence, causing special injury by reason of being, by the unlawful imprisonment, subjected to them, whatever their nature, aggravated the wrong and enhanced damages, had the injured party survived; and, causing death, cooprated with the trespass to give the statutory right of action to the personal representative. The fact that the intestate is described as a convict, does not affect the counts. It is, as stated, mere desoriptio personae; necessary to be proved, however, because alleged. With these considerations, it is clear, the first, second and third counts of the complaint are good.

- The fourth, fifth and sixth counts, had the injured party survived, and. were suing for the damages, show •actions on the case. They .show that the intestate was being lawfully worked in the mine by .the defendant, as a convict, under hire from proper authorities, and, in the fourth count, that he was worked under the superintendence of one George Miller who was an unfit person to whom to trust such superintendence, in that he was incompetent or careless, in consequence whereof said Miller caused a part of the roof of the mine to fall upon intestate and crush him so that he died by reason thereof; and in the fifth count that Miller as such superintendent was guilty of specified negligence, causing the death ; and in the sixth count, that Miller, as such superintendent, recklessly, wantonly or intentionally caused or allowed a part of said roof to fall, causing the death. It is obvious that each of these counts is good under the statute above copied.

Though the question of misjoinder of counts by reason of the different natures of the wrongs charged, was not well raised by the demurrer, yet, as the case must be tried again, we remark that the action given bj^ the statute is sui generis. It may be properly designated an action on the case, without regard to the nature of the wrongful act or omission causing the death — whether direct which would confine the remedy of a person, who received and survived the injury, to trespass, or consequential, defining case as the proper remedy. We think, therefore, there was no misjoinder of counts.

It seems to have been supposed that some of these counts were under the employers’ liability act, or were governed by the rules regulating the liability of a master for the .acts or omissions of fellow servants. This, we think, a misconception of the law. There was, under neither count, a relation of master and servant between the defendant and the intestate. That relation always grows out of a contract between the .parties, express or implied. Here, under the last three counts, the intestate was a prisoner in the custody of the defendant, as his keeper. By law, and the defendant’s contract with the proper law officers, it was authorized to put him to labor in the mine, and owed, him the duty of doing him no willful harm, and of exercising reasonable care for his personal safety. The intestate had made no contract with any one. His servitude was involuntary. It was enforced. He had no right or power to refuse to enter upon the service, or to quit it, at any time, until his sentence expired. Whatever may have been the dangers of the service, howsoever incompetent, careless or vicious may have been the defendant’s agents or servants put to work with or over him, the convict had no voice, volition or freedom of action, in the matter, whatever. He had entered into no contract, express or implied, to take the risks of the 'wrongful acts and omissions of the defendant’s servants. He was fellow servant with no one. A master’s exemption from liability of a servant for negligence of a fellow-servant, in a common employment, lias for its fundamental principle, that by voluntarily entering the service the servant engages to take upon himself the natural and ordinary risks and perils incident to the performance of such service, which includes the risk of injuries arising from the wrongs and omissions of fellow servants in the same employment. When he enters the service it is presumed he has observed and understands its character and the character of the servants employed therein, and contracts with reference thereto. If incompetent or unfit servants are introduced, or retained in the service of the master, he has the right, growing out of his contract, to demand of the master correction of the wrong, and if not done, to quit the service. Thus he has the means of protecting himself against the dangers of unfit fellow-servants.— 7 Am. & Eng. Encyc. of Law, 821, 824. The case of Walker v. Bolling, 22 Ala. 294, relied upon by counsel, clearly supports what we have said. There is no analogy between the letting to hire of a slave by his owner, and of a convict by the State under the statutory convict system. The slave was a chattel. He had no rights of action, By injuries to him the owner alone was, in a legal sense, damnified. The owner, by letting the slave to hire, to work with other servants, by his contract, assumed the ordinary risks of the service, and when suing for an injury to the slave was subject to that principle. If by law, the State, letting a convict to hire, might sue for a wrong causing his death, there might be reason for applying the rule to its suit. Wherefore, if the defendant, or any officer or servant of the defendant, acting within the scope of his employment, either will fully or negligently did the intestate an injury the defendant was responsible therefor. It follows these views, that all the demurrers to the complaint ought to have been overruled; and as the sjpecial limitation of two years is, by the statute, applicable to the action, the demurrers to all the pleas of the statute of limitations of one year, ought to have been sustained. The sixth plea was interposed to the first count only, and there seems to have been no ruling on the demurrer to it. It is, however, of no practical importance, since under the agreed facts showing the intestate was a convict lawfully hired to the defendant to work in the mine, there can be no recovery under either the first, second or third counts. We will state, however, that the plea contains such repugnancy that it is incapable of' being sustained by proof. Taken most strongly against the pleader, it must be assumed that the injury to intestate was received in the performance of the service for which he was hired from the State; and, in such service, he could have no fellow-servant. The averments of the plea, therefore, defeat each other.

Before adverting to the rulings upon the evidence, we observe that the merit of the controversy obviously turns upon the fifth count of the complaint. . If the injury was caused by the negligence of Miller, as charged' in that count, the plaintiff is entitled to recover, under the facts now before us. Whether or not Miller was generally unfit and incompetent, is of no importance in a case like this, unless it be admissible, evidentially, as shedding light upon the material inquiry whether or not, through his negligence or want of skill, the particular injury happened ; and unless it may be properly considered in the assessment of damages. So, also, it is not material to the cause of action that, as alleged in the sixth count, Miller recklessly, wantonly or intentionally -caused the injury — there being no evidence of contributory negligence on the part of the intestate. The fact of such recklessness, &c,, would be material only in the assessment of 'damages.

. There being no controversy as to the fact or manner of intestate’s death, save as to the particular question of negligence, there was no necessity for the testimony of the witnesses, Montgomery and McMahan, to which objections were made, and the court committed no error in sustaining the objections.

There was evidence tending to show that Miller had served in the capacity of a superintendent or boss in the mine, for the defendant, for several years. George Mason, a witness for plaintiff, testified that he, witness, had been engaged in mining about two years and a half; that he was familiar with the kind of work Miller and intestate were engaged in ; had known Miller four and a half years and had seen his work often; that Miller’s duties were, together with his laborers, to take down from the roof of the entry and load slate or rock in the mine ; that at the time of the injury Miller’s crew consisted of himself, as boss, and two other negroes and the deceased. This witnes was then asked by the plaintiff, if George Miller was a competent man to be entrusted with superintendence, to which objection was made on the ground that it called for the witness’s opinion. We think the predicate for the opinion was sufficient, and that the court erred in sustaining the objection. It was not proper for plaintiff to prove that other parties had been injured in the mines while working under George Miller.

Defendant’s warden, when on the stand as a witness for defendant, testified that he considered Miller a careful and competent rock man. Miller was a convict in the mines. The witness testified, on cross-examination, that he kept a record of punishments, and knew Miller had been whipped, and that he wore a chain. Plaintiff then asked witness if he had not whipped Miller for breaking the leg of one Tom Hill? The question was .objected toas irrelevant and immaterial. If otherwise admissible, the question was too general to be relevant. He may have broken the leg of Tom Hill in some act or manner having no connection with his business or duties as defendant’s rock boss or superintendent.

Said George Miller, when on the stand for defendant, testified that he had been punished by being whipped, but had never counted the number of times. He was then asked by plaintiff if he was kept in charge of the rock gang after whipping. The proposed question was not limited to time prior to the injury in question, and we will not put the court in error in sustaining the objection to it. It was not competent to prove that Miller was chained and whipped after the'death of intestate, unless it be shown to have had some connection with such death.

The principles declared in this opinion, will serve to point out the errors of the court in its instructions to the jury.

•In view of the developments of the former trial, we deem it proper to say, that' damages recoverable in actions of this kind, are entirely punitive; and evidence tending to show actual pecuniary loss, by reason of the death, is not admissible. The amount of the recovery, when the issues are found for the plaintiff, is left to the sound discretion of the jury, to be wisely and impartially exercised, in view of all the circumstances of the case shown in evidence.

Reversed and remanded.