Sloss-Sheffield Steel & Iron Co. v. Dunn

PELHAM, J. — This suit is for damages alleged by the appellee, as plaintiff in the court below, to have been suffered by him in consequence of personal injuries received while an employee of defendant. The allegations of counts 1 and 2 of the complaint are practically the same, so far as the stating part of each count attacked by demurrer is concerned. We think that, fairly construed, the language employed in drafting each of these counts sufficiently shows that the plaintiff, at the time of the accident, was in the discharge of his duties under his said employment by the defendant company — that is, that at the time of his injury he Avas engaged in the performance of duties Avithin the scope of his employment, and such as he [528] was employed to perform by the defendant. By giving tbe proper and recognized construction to tbe word “said” where it occurs in these counts immediately preceding the word “duties,” and referring the allegation to the only antecedent to which it may sensibly and correctly be referred (and it is the established rule to refer such an allegation to the proper antecedent statement. — Parker’s Case, 156 Ala. 251, 47 South. 138; Weather’s Case, 164 Ala. 23, 51 South. 303; Gonzale’s Case [Sup.] 61 South. 80; 7 Words and Phrases, 6284, 6285), it is plain that these counts charge that the plaintiff, at the time he received the injuries complained of, was in the discharge of the particular duties ■of his employment under his said employment by the 'defendant company, and, if so, he was acting at the time of injury within the line and scope of his employment by the defendant, and engaged in the performance of the particular duties he was employed to perform. Demurrers to these counts on the grounds stated were properly overruled. There is no merit in the contention that it was reversible error for the court to refuse to permit the appellant to show on the cross-examination of the plaintiff that he was not charged for staying in the hospital part of a day. No evidence was introduced on the trial to show the amount of the permanent loss of earning capacity of the plaintiff in consequence of his injury (that is, no data furnished affording the jury a basis upon which to reach a conclusion as to permanent loss of earning capacity in consequence of the injury suffered), and the defendant excepted to two different portions of the court’s oral charge in which the court instructed the jury that, if the plaintiff’s injuries resulted in any permanent disability to earn money in the future, he could [529] recover such damages as would compensate him for this decreased earning capacity. The first portion of the oral charge to which exception was reserved clearly included other matters that were correct statements of the law, and the court cannot be put in error when the exception reserved did not separate the bad from the good parts of the charge. — Marbury Lumber Co. v. Lamont, 169 Ala. 33, 53 South. 773; W. U. Co. v. Burns, 164 Ala. 252, 51 South. 373; Ala. S. & W. Co. v. Griffin, 149 Ala. 423, 42 South. 1034. The second excerpt from the oral charge to which an exception was reserved as set out in the transcript is in the following language: “And if the injury results in permanent disability to earn money in the future, or any deformity of any kind or character, then he has the right to recover such damages as would reasonably and fairly compensate him for any decreased earning capacity in the future.” There was evidence that plaintiff suffered a slight permanent deformity in the enlargement or stiffening of the wrist, and it is insisted by the appellee that the .exception to this portion of the oral charge is open to the same objection or criticism as to constituting reversible error as the first portion excepted to, because it included the statement in the disjunctive “or any deformity of any kind or character.” However this may be, the court, in its oral charge, instructed the jury that they had the right to assess such damages as would fairly and reasonably compensate plaintiff for permanent decrease in his earning capacity, if the injury resulted in permanent disability to earn money, or in any deformity, and, as there was no evidence before the jury affording a basis for estimating compensatory damages on account of decreased earning capacity in the future, the jury would not be authorized to make a finding awarding such damages on mere conjecture, and it was [530] error to refuse charge No. 4 requested by the defendant. —B. R., L. & P. Co. v. Harden, 156 Ala. 244, 47 South. 327; Manistee Mill Co. et al. v. Hobdy, 165 Ala. 411, 51 South. 871, 138 Am. St. Rep. 73; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 South. 733; Cent. of Ga. Ry. Co. v. McNab, 150 Ala. 332, 43 South. 222; Sloss-Sheffield S. & I. Co. v. Stewart, 172 Ala. 516, 55 South. 785; Stewart Bros. v. Harris Cortner & Co., 6 Ala. App. 518, 60 South. 445. For the reasons given, the judgment of the court below must be reversed. Reversed and remanded.