Citizen's L. H. & P. Co. v. Lee

MAYFIELD, J. This is an action by an administratrix to recover damages for the wrongful death of her intestate. It is brought under the homicide provision of the Employers’ Liability Act (Code, § 3912), and not under the statute known as the Homicide Statute (Code, § 2486). As has been repeatedly decided by this court, the measure of damages, in actions brought under the one, is entirely different from that in actions brought under the other, statute. Under the one the damages are compensatory only, while under the other they are punitive only. That there is no reason for such a distinction has been reiterated by this court; but these statutes were so construed and have been repeatedly readopted without change and with this construction placed upon them. The intestate in this case was a lineman in the employ of the defendant electric company and was working in that capacity at the time he met his death, which was in an attempt to climb an electric pole upon which the electric wires of the em — 572 — ployer were strung. In some respects this case is similar to the Sanges Case, reported in 169 Ala. 353, 53 South. 176, Ann. Cas. 1912B, 461. Numerous counts were filed in this case unnecessary to be noticed for the reason that they were eliminated from the case, and eliminated upon grounds of which the appellant does not and cannot complain on this appeal. The case was ultimately tried on counts 2, 3, 4, and 5. To each Of these counts demurrers were overruled, and to each a great number of special pleas of assumption of risk and contributory negligence were interposed and demurrers to each of which were sustained. The record, however, informs us that by consent or agreement the trial was had on the general issue and upon pleas of assumption of risk and of contributory negligence pleaded in short by consent. So if there was any error as to rulings on those special pleas, it was cured or rendered harmless by allowing these two special pleas to be pleaded in short in consent. The record therefore affirmatively shows that these errors, if such they were, were without possible injury, for the reason that any defense was availing under these issues which could have been availing under the special pleas, and that it Avould require no more nor less proof than would have been required under the special pleas as to which demurrers were sustained. We do not think that either one of these counts upon which the trial was had was subject to any ground of demurrer interposed thereto. While count 2 did not allege in terms that the defendant was the owner of the wire or pole which was alleged to be defective, it did allege that the wire and pole were a part of the ways, works, machinery, or plant, etc., of the defendant, and so alleged in the language of the statute. — 573 — In such cases it is not necessary to allege or prove that the master owns the defective machinery or appliances forming a part of the ways, works, etc. The master cannot avoid the duty imposed by the statute, or escape liability under the statute, by using the machinery or appliances of other masters. — Rockhold’s Case, 143 Ala. 115, 42 South. 96; Cunningham’s Case, 141 Ala. 206, 37 South. 445; Andrews’ Case, 150 Ala. 368, 43 South. 348. The statute requires only that the instrumentality “be connected with, or used in, the business of the master.” The allegations of this count were therefore sufficient, and there was proof which, if believed, supported the averments. The fifth count is almost an exact copy of counts repeatedly held sufficient by this court. See Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338; Lewis’ Case, 161 Ala. 417, 49 South. 859; Triplett’s Case, 4 Ala. App. 323, 58 South. 109. The duties which an electric company owes to its employees, and especially to linemen, are stated to some extent in Sanges’ Case, 169 Ala. 353, 53 South. 176, Ann, Cas. 1912B, 461. The duty is upon the master to exercise reasonable care to the end that his servants shall have a reasonably safe place in which to work and to discharge their duties to him; and to exercise the same care to see that needed and proper repairs and inspections of his premises are made, so that they may continue safe for the use of his servants. The master also owes the duty to exercise reasonable care to warn his servants who are without such knowledge of dangerous premises or machinery which they are required to use. — Thompson on Neg. §§ 3763, 3781, 4017; Hammond’s Case, 156 Ala. 253, 47 South. 248. There was no reversible error in the rulings as to the evidence in allowing expert proof as to how long it is — 574 — necessary for one to become an experienced lineman. The witness qualified as an expert on this subject; and, moreover, the objection came too late — not until the alleged objectionable question was answered. There was evidence tending to support each count on which the case was tried, and the issues of contributory negligence and assumption of risk were clearly questions for the jury; hence the affirmative charges were properly refused. As before stated, it was necessary to prove that the instrumentality which injured plaintiff’s intestate belonged to, or was the property of, the defendant. It was sufficient to allege and prove that the instrumentality was connected with, or used in, the business of the master. This was so alleged, and there was proof tending to support the allegation. It cannot be said as matter of law, in this case that the servant assumed the risk. The servant is not held to have assumed the risk of defects in the ways, works, machinery, plant, etc., of the master, of which he had no notice or knowledge and of which he was not chargeable with such notice or knowledge. He does assume the ordinary risks incident to the employment; but not that of the negligence of the master or of the superintendent, nor other risks, incident to the breach of duty, by the common law or the statute imposed on the master. — Briggs v. Tenn., 163 Ala. 239, 50 South. 1025; Brantley’s Case, 168 Ala. 579, 53 South. 308; Moore’s Case, 158 Ala. 368, 48 South. 593; McGowan’s Case, 149 Ala. 440, 43 South. 378; Bean’s Case, 163 Ala. 263, 50 South. 1012; 5 Mayf. Dig. 577 et seg. Charges A, C, G, S, and 13 were each properly refused. Charge A is confused as to the counts to which it refers. — 575 — Charge C was also misleading, and was bad in form and in the manner in which it refers to the complaint, in that it begins with this statement: “To counts numbered 3 and 4 separately and severally it pleads, etc.” Charge Gf ivas abstract for the reason that, so far as we are able to find, there is no evidence that the intestate was charged with or was under any duty to inspect the pole referred to in the charge, nor that he was guilty of any negligence in the matter of that particular inspection. Charge E was misleading, and was properly refused because it is indefinite and uncertain as to what defect it has reference to. Charge 13 was inherently bad, as applied to the evidence in this case. The amount of damages was a question for the jury and not for the court. There was nothing incorrect or harmful in that part of the oral charge to which exceptions were reserved. The circumstances referred to by the court (the age, habits, etc., of the deceased), as developed in the evidence, could be looted to by the jury in ascertaining the amount of damages; and this is all, in effect, that the court charged in the part of his oral instruction to which the exception was reserved. — Bennett's Case, 144 Ala. 186, 39 South. 574, 1 L. R. A. (N. S.) 1150, 113 Am. St. Rep. 32; Orr’s Case, 91 Ala. 548, 8 South. 360. This brings us to a consideration of the question to which most of the argument (for both appellant and appellee) is addressed, to wit, whether or not there was reversible error in the action of the court in qualifying the jurors for the trial of this cause. We confess that the practice is new and novel, and should certainly not be resorted to for the purpose of influencing the jurors who were to be selected to try the pending cause. The plaintiff, before the trial was entered upon and appar — 576 — ently for the purpose of ascertaining the qualifications of the jurors to he selected to form the venire for the trial of this cause, filed a motion in writing (omitting the formal parts) as follows: “Comes the plaintiff and moves the court to qualify the jury as to their being employees, stockholders, or interested in the ‘London Guarantee & Accident Company, Limited/ and as grounds for this motion assigns the following: First. That the said defendant has an insurance policy in the London Guarantee & Accident Company, Limited, under the terms of said policy the said London Guarantee & Accident Co., Limited, agrees to pay any judgment that the plaintiff may recover against the defendant to an amount not exceeding $5,-000. Second. That the London Guarantee & Accident Company, Limited, has agreed to pay any judgment that the plaintiff may recover in this suit against the defendant in a sum not exceeding $5,000. Third. That the London Guarantee & Accident Company, Limited, is interested directly in the defendant and in this suit in that, should a judgment be obtained against the defendant for a sum less than $5,000, then in that event the said London Guarantee & Accident Company, Limited, becomes liable to the defendant for said sum so recovered against the defendant; that the London Guarantee & Accident Company, Limited, has employed attorneys to defend this suit. Fifth. That the result of this suit does not affect the defendant should a judgment be recovered for an amount of $5,000 or less; that the London Guarantee & Accident Company has agreed with the defendant to pay said sum. Sixth. That the London Guarantee & Accident Company, Limited, is the party defending this suit, and that a judgment for $5,000 obtained against the defendant is to be paid by the said London Guarantee & Accident Company, Limited.” — 577 — The defendant objected to the filing of the motion and moved to strike it, and objected to the motion being read in the presence or hearing of the jury, and to the introduction of evidence to prove the allegations of the motion, and excepted to each ruling and action of the court as the proceeding progressed. The trial court, however, before allowing proof of the motion, made the following statement to counsel for defendant, to which counsel replied as indicated: “It is only for the purpose of qualifying the jury, and if you gentlemen.will agree that the jury may be qualified without going into the testimony, it need not be taken.” Defendant answered: “We are not going to agree to it at all.” The plaintiff then proved that the insurance company had executed an insurance policy or contract to the defendant, which would cover the loss or injury sued for, to the amount of $5,000. To the action of the court in allowing this proof the defendant excepted. This clearly presents to us the question whether or not such action on the part of the trial court was reversible error. It cannot be doubted that the law demands that jurors who administer justice in its courts should be free from bias or prejudice. They should be impartial and indifferent to the result of the suit, save as the evidence and the law direct. A man cannot, under the law, be a judge or a juror in his own case. The master is not a qualified juror or judge in his servant’s case, nor the servant in his master’s case. Neither is the attorney so qualified as to his client’s case. The principal is not a qualified juror in his agent’s case if it concerns the agency, nor is the agent so qualified in his principal’s case. It has been held that the relation of landlord and tenant dis — 578 — qualifies the parties so related as jurors.- — Brazleton’s Case, 66 Ala. 98; B. R. L. & P. Co. v. Drennen, 175 Ala. 338, 57 South. 876. It was said by this court in Drennen’s Case, supra: ‘'“'Without committing ourselves to-all that Mr. Proffatt (Jury Trial, § 177, p. 231) says, we quote: “Social or business relations existing between a juror and a party to the suit render the juror incompetent. As when the juror is under the power of either party, or in his employment, or has drunk or eaten at his expense, since the commencement of the action. Hence the relation of landlord or tenant disqualifies.’ Mr. Thompson (Trials, vol. 1, § 67, p. 59) says: “That the venireman is the inferior or dependent in business relations of the opposite party' to the suit will generally disqualify. This, if he is his surety, and the rendition of a judgment against him will diminish the probability of his being exonerated, or if he is his tenant, although distress for rent may have been abolished.’ ” This court has repeatedly held that the disqualifications of jurors mentioned in the statutes are not the only ones that exist or that will be enforced by the courts of the state, but that there are others which existed at the common law, and which will be observed in passing upon the competency of jurors in both civil and criminal trials. If the insurance company referred to in the motion and the evidence would be liable as for the judgment to be rendered in the case to the amount of $5,000, then, of course, it had a direct pecuniary interest in the suit; and hence the stockholders, officers, agents, and servants of such company would be thereby disqualified as jurors for the trial of the case, and would be subject to challenge for such cause. If any such persons were on the venire or panels, it was not only proper that the court be informed thereof, but it was also necessary, in — 579 — order that the jury might be purged of such disqualified persons. There is in this state no set or fixed rule by which the court should be so informed of such disqualifications, or by which the court should ascertain the facts of disqualification; but this should be done before the trial is entered upon, otherwise the parties might be held to have waived the ground of challenge or disqualification. All this, of course, ought to be done, in so far as it can be done, in a mode and at a time that will not prejudice jurors, otherwise qualified, against the rights of either party. Improper conduct or remarks of counsel or of the trial court as to such matters have frequently been held sufficient ground for setting aside a verdict and when on the part of the trial court, sufficient cause to reverse a judgment. The object and purpose of the law in the matter is to purge juries of incompetent and disqualified persons as to that particular trial, and so to prevent bias and prejudice from inducing an improper verdict. Of course, the right to so purge the jury ought not to be denied; but, for equally just reasons, such right ought not to be so exercised or asserted as to prejudice those who are not disqualified, against either party to the suit. The last condition would be as objectionable as the first — indeed, the infirmity would be the same. The jurors would thus be rendered unfit to try that particular case, and be so rendered in an attempt to get rid of disqualified persons. In such case the disease would be no worse than the remedy. For this reason, trial courts and counsel should always be careful in ascertaining the facts as to such disqualifications and in excusing or in challenging a person as incompetent. Any attempt on the part of counsel to get before the jury the fact that parties other than — 580 — the litigants will be injured or benefited by the verdict or judgment to be rendered for the purpose of biasing or prejudicing the jury and not for the purpose of ascertaining the fitness of the jurors for the trial, is highly reprehensible, and should not for a moment be tolerated by trial or appellate courts. Such practices have been repeatedly condemned by this and all other appellate courts. Quite a number of cases are cited by counsel for appellant to show that the rulings of the court on questions arising out of the motions and the evidence, as to the qualifications of jurors, were reversible error. Among those most strongly urged are the following-cases : — Wesby v. Washington Brick Co., 40 Wash. 289, 82 Pac. 271; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 Pac. 431; Stratton v. C. H. Nichols Lumber Co., 39 Wash. 323, 81 Pac. 831, 109 Am. St. Rep. 881; Eckhart Milling Co. v. Schaefer, 101 Ill. App. 500; Lipschutz v. Ross (Sup.) 84 N. Y. Supp. 632; Chybowski v. Bucyrus Co., 127 Wis. 332, 106 N. W. 833, 7 L. R. A. (N. S. 357; Howard v. Beldenville Lbr. Co., 129 Wis. 98, 108 N. W. 48. In most all of these cases in which a reversal or a new trial was had, it was on account of remarks of counsel during- the progress of the trial after the jury had been qualified and selected, and the remarks were evidently made for the purpose of inflaming the jurors so selected, and who were qualified, and not for the purpose of ascertaining if any were disqualified, and, if so, to get rid of them, as it is madC to appear in this case. The only effect the remarks could have had in the cases cited was the improper one above referred to; while in this case the declared purpose of the motion and the evidence was a proper one, to wit, to ascertain if any of the jurors were disqualified on account of their — 581 — relation to, or connection with, the insurance company, and to show that the insurance company was directly and financially interested in the verdict. If counsel had a right to make the motion in question — -and it seems that they had — and the interest of the insurance company was not admitted, as it could have been and as counsel for defendant declined to do, then of course, the plaintiff had a right, and it was her duty to the'court, to show that the material matters set forth in the motion were true. And this being shown, it was not only the right, but it was the duty, of the court to qualify the jurors as to the matters contained in the motion, and presumptively the trial judge instructed the jury that the fact that a surety company had insured the defendant against loss should not influence their verdict. If none of the jurors were disqualified on this account, counsel for the defendant could have avoided the evil effects by admitting the averments of the motion, as to which there seems to have been no dispute, and have consented that the jurors be qualified on this subject. If it were known to the counsel and to the trial court that none of the jurors were disqualified on account of the matters set forth in the motion, it would, of course, be highly improper to parade the fact that the insurance company would be liable. But there is nothing in this record to show that either the trial court or counsel had such knowledge at the time the motion was made and the evidence in support of it was offered. For this reason we cannot reverse, and ought not to reverse, the judgment. Trial courts, however, ought to be very watchful to see that verdicts are not improperly influenced or obtained through methods such as are alleged in the motion and evidence now under discussion. While the verdict in this case is large, we are not prepared to say that it clearly appears to be so excessive — 582 — that we would be justified iu setting it aside under the rules in such cases repeatedly laid down by this court. Affirmed. Dowdell, C. J.; and Anderson and de Graefenried, JJ., concur.