Sloss-Sheffield Steel & Iron Co. v. Dean

MERRITT, J. The facts in this case relative to the operation of the mine in question are very similar to the statement of facts as set out in the opinion of Mr. Justice Thomas in the case of Amerson v. Corona Coal & Coke Co., 194 Ala. 175, 69 South. 601, in which the Supreme Court held that the question as to whether the contract of lease was a subterfuge was properly submitted to the jury. Upon similar statements of fact, the decision in the Amerson Case has been followed in Sloss-Sheffield Steel & Iron Co. v. Hubbard, 14 Ala. App. 139, 68 South. 571, and the last case being the case of Coal City Mining Corporation v. Davis, 81 South. 358, 1 this opinion of the court being rendered by Judge Samford. [1] This court is bound by the latest utterances of the Supreme Court, and a very careful examination of the facts in the instant case convinces us that it was- a question for the jury to determine who was the employer of the plaintiff at the time of the injury. [2] The appellant insists, however, that the appellee having elected to bring his shit against two defendants, alleging a joint employment, and without amendment the case was submitted to the jury and as submitted one of the chief issues was which of the two was the employer, with the distinct instruction by the court, that under the testimony they both could not he his employer, that under the law in this state the plaintiff could only recover upon proof that he was the employe of both of the defendants. It is true that “this action, though ex delicto, is for an alleged tort growing out of a contract, viz., the contract by which alone was created the relation whicli gives rise to the duty alleged to have been violated, and in such case proof of a contract different from that alleged constitutes a fatal variance”; but there is another proposition equally as sound and of as long standing, and that is that it was incumbent upon the defendant in the trial court to call attention by specific instructions, to this variance before advantage can be taken of it. It appears that no objections were interposed to the introduction of testimony of this character in the court below, that the attention of the trial court wa.s not called to this variance in appellant’s motion for a new trial, and that in no way was it plainly pointed out at any time in the trial of this case in the court below that there was a variance, ■ and, such being the case, to give the appellee the right to amend as is provided for by statute. But th-e appellant insists that it was not necessary to so do, for the trial judge “distinctly took that position, and so charged the jury, that recovery could be had against only one of the defendants, under the testimony in the case.” While this ax>pea¿'s to be true, we cannot yet say, under the facts in this case, the defendant met the requirements of rule 34, circuit court practice, and, while we do not decide, may it not he a requirement, under this rule that before the trial court shall he put in error, first, as regards the introduction of evidence that “there was a special objection making the point as to the variance,” and, second, upon a refusal of the general charge “unless it appears from the record that the variance was brought to the attention of the said trial court by a proper objection to tbe evidence.” We do not think that the fact that the trial judge charged the jury in his oral charge, “You will not he authorized to return a verdict against both of these defendants,” was a waiver of the requirements of rule 34, circuit court practice, nor did it do away with the requirements thereof. Carter et al. v. Shugarman, 73 South. 119. 2 This court has said in the case of McWhorter v. Hagler Mercantile Co., 4 Ala. App. 296, 58 South. 790, through Judge Walker: “In no way was the question of a variance called to the attention of the trial court.' It was not even raised in the motion for a new trial, conceding that it would have been in time if then first suggested. In now urging that a new trial should have been granted because of the alleged variance, the appellants are suggesting a ground for setting aside the result of the trial which might not have existed but for their own failure to avail themselves of the opportunity to present the question before the case went to the jury. A party is not entitled to another trial to enable him to present a question which he had full opportunity to present in the trial already had, especially when no excuse is shown for his failure to raise the question at the proper time. Such an objection is not available on appeal when it is not in some appropriate way plainly brought to the attention of the trial court. If it had been made at the proper tíme, it might have been obviated by an amendment of the complaint.” Odom as Ex. v. Moore, 147 Ala. 567, 41 South. 162; Ency. of Pleading and Practice, 629, 639. [3] There was no error in refusing to allow the witness McGlellan'to answer the question propounded' to him by appellant, “The company quit running it then?” A reading of the testimony discloses that this question called for a fact that happened seven years previous, before the contract relied on was executed by the Sloss-Sheffield Steel & Iron *255 Company and Brewis, and under any theory of the case was inadmissible. It follows from what has been said that the case must be affirmed. Affirmed. Footnotes [1] Ante, p. 22. [2] 197 Ala. 577.