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[Boyd v. Indian Head Mills of Alabama.]

the person employed by defendant to act as foreman, but who had no authority, express or implied, to appoint another in his place.

APPEAL from the Circuit Court of Walker.
Tried before the Hon. A. A. COLEMAN.

A sufficient statement of facts appears in the opinion.

MCCULLUM & MCGREGOR, for appellant, cited Eureka v. Bass, 81 Ala. 200; K. C., M. & B. R. R. Co. v. Davis, 99 Ala. 593; L. & N. R. R. Co. v. Wilson, 85 Ala. 269.

COLEMAN & BANKHEAD, contra, cited L. & N. R. R. Co. v. Hall, 87 Ala. 708; Eureka Co. v. Bass, 81 Ala. 200; Birmingham Ry. Co. v. Allen, 99 Ala. 359; Bridges, Admr., v. T. C. I. & R. R. Co., 109 Ala. 287.

SHARPE, J.-Plaintiff was employed by defendant to assist in pushing tram cars from a mine which was being opened along and to the end of a trestle and there emptying the car. The car had to be emptied by tipping or overturning it so that its contents would fall below. Ordinarily in operation of mines so situated an appliance called a tipple which tips or upturns a car when the same is run upon it, is used for emptying but none had been attached to this trestle. Instead of it, blocks of wood shaped and placed so the car wheels would come against them, were nailed to the trestle. In assisting to empty a car in this way one of the blocks depended on to hold the wheels, split away and caused the car to swerve against the plaintiff, whereby he was thrown from the trestle and received the injury for which he sues.

In different counts the complaint imputes negligence to the defendant in failing to have a tipple; in using weak blocks as a tipple; in not furnishing plaintiff a safer place whereon to work; also in striking plaintiff with the car, and again for the fault of one intrusted by defendant with superintendence. In the evidence we have failed to find support for either of these charges of negligence. It is plain that defectiveness of the blocks which gave way under pressure of the car wheels

[Boyd v. Indian Head Mills of Alabama.]

was the proximate cause of the injury. The other conditions including the absence of any tipple, and the character of the trestle, were open to ordinary observation and must have been known to defendant. Whatever danger to plaintiff they involved was open to ordinary understanding and must have been fully understood by him. He must, therefore, be held to have assumed the risk incident to emptying cars without a tipple. As a general rule a risk knowingly and voluntarily assumed by an employe cannot by him be imputed to neg ligence as to employer.-B. R. & E. Co. v. Allen, 99 Ala. 359; Eureka Co. v. Bass, 81 Ala. 201; Bailey's Per. Inj., §§ 455 et seq.; So. R'y. Co. v. Guyton, 122 Ala. 231.

The blocks which proved defective were placed and used by direction of one John Gray. He was acting as foreman but only by request or direction of his father William Gray, who was the person employed by defendant to act as foreman. William Gray deposed that he had no authority to so appoint his son and there was no evidence to discredit his statement. That a foreman's authority extends to the placing of others in authority may in some cases be implied, as where the character of the work of which he is given charge necessitates it, and such delegation of authority may be inferred from acquiescence in its exercise; but here there is no evidence from which such implication or infer ence can arise. Under the evidence such negligence as may be attributed to John Gray in respect of using or placing the blocks to hold car wheels or directing the work can be given no more effect than the fault of a fellow servant such as neither the common law nor the statute (Code, § 1749) makes the common employer liable for.

The rulings on pleadings and evidence assigned as error were not such as to hinder the plaintiff in presenting and proving his case; and the whole evidence shows as a legal conclusion that the plaintiff was without right to recover under either count of the complaint. Consequently it appears that those rulings could not have injured the plaintiff so as to give cause for reversing the judgment.

[McDonald, Exec. v. Harris.]

McDonald, Exec. v. Harris.

Action against the Executor of an Estate for the Value of Medical Services rendered Deceased.

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Evidence; competency of parties as affected by interest.—In an action against the executor of an estate for the value of medical services rendered deceased by plaintiff, the widow of deceased and defendant, who is a son of deceased, are not competent witnesses when called by defendant to prove certain transactions between plaintiff and deceased, and certain statements by deceased. Each of them is a person who has a pecuniary interest in the suit, and comes within the exception provided by statute, (Code, § 1794).-(Austin v. Bean, 101 Ala. 133, so far as it holds to the contrary, overruled).

Same; same.-In an action against the executor of an estate for the value of medical services rendered deceased, the widow of deceased and defendant, who is a son of deceased, are competent witnesses when called by defendant to prove certain declarations of the plaintiff as to the character of deceased's complaint and directions as to his treatment, which were made and given to the witnesses out of the hearing and presence of deceased.

Same; charge.-In an action against the executor of an estate for the value of medical services rendered deceased by plaintiff, the testimony of the widow of deceased regarding declarations made by plaintiff to her as to a guarantee of the cure of deceased is not admissible to show a contract with deceased; but when properly admitted for another purpose, it will not be limited to that purpose in its effect; and a charge is not improper which directs the jury that they shall find for the defendant, if they believe from the evidence that plaintiff agreed with deceased not to charge him for services unless he effected a cure.

4. Expert testimony; hypothetical question not supported by the evidence. In an action against the executor of an estate for the value of medical services rendered the deceased, it is error to refuse to sustain an objection to a hypothetical question which supposes a detention of a physician for an

[McDonald, Exec. v. Harris.]

hour or more on various visits, when there is no evidence to show that the physician was detained at any time beyond the ordinary period of a visit.

5. Plea; lack of skill on part of physician.-In an action against the executor of an estate for the value of medical services rendered deceased by plaintiff, a plea that sets up that the services were not renderd in a skillful and competent manner is subject to demurrer. Such plea would require a verdict for the defendant upon proof that plaintiff did not exercise the highest degree of skill in the treatment of deceased, and that he was not in the highest degree competent in his profession, while the law imposes on a physician the duty of exercising only that degree of skill and competency which physicians ordinarily exercise.

6. Charge; improper.-In an action against the executor of an estate for the value of medical services rendered deceased by plaintiff, a charge is bad that affirms that the first count of the complaint only claims for work and labor done and medical services rendered on the 20th day of August, 1898, whereas the count is really for a sum alleged to be due on the 20th day of August, 1898, for work and labor, etc. 7. Same; not improper.-In an action against the executor of an estate for the value of medical services rendered deceased by plaintiff, a charge is not improper that directs the jury that for the plaintiff to recover he must show to the reasonable satisfaction of the jury a contract, either express or implied, with deceased to pay plaintiff the reasonable value of his services, irrespective of the result.

APPEAL from the Circuit Court of Mobile. Tried before the Hon. WILLIAM S. ANDERSON. This action was instituted by the appellee against ap pellant as executor of the will of Thomas W. McDonald, deceased, to recover for medical services rendered by the former to the defendant's testator. There were three counts, the first for work and labor done and due on the 20th of August, 1898; the second, on an account; and the third, an account stated.

The defendant pleaded the general issue and the two following special pleas: "2d. For further plea in this behalf the defendant says that this suit is for medical services alleged to have been rendered to Thomas W. McDonald in his lifetime, and that the said work was not done, and the said medical services rendered in a

[McDonald, Exec. v. Harris.]

skillful and competent manner. 3d. For further answer the defendant says that the plaintiff did not, within twelve months after the grant of letters to the defendant as executor of the estate of Thomas McDonald, deceased, duly file the claim now sued upon in the office of the judge of probate, in which said letters were granted to the defendant, or with the executor of said estate, a sufficient claim or a sufficient statement thereof."

To the second plea the plaintiff demurred upon the following grounds: 1. Because the facts averred therein constitute no defense in bar of said action. 2. Because the plaintiff was not required to use the highest degree of skillfulness and competency, but only such reasonable and ordinary care, skill and diligence as physicians ordinarily have and exercise in such cases in the community where said services were rendered. To the third plea the plaintiff demurred upon the following grounds: 1. Because said plea is a conclusion of the pleader, and does not allege wherein said claim or statement filed in the probate court or with the defendant was insufficient. 2. Because said claim or statement may have been, from all that appears in said plea, properly presented to the defendant as executor. 3. Because the plaintiff is not required to file in the probate court the claim now sued on. The demurrers to these pleas were sustained.

Upon the trial the defendant offered to prove by certain witnesses who were interested in the estate of the decedent, transactions between the plaintiff and deceased and statements made by the latter. This testimony was excluded on motion of the plaintiff, to which ruling the defendant duly excepted. The defendant also sought to prove by these witnesses declarations of the plaintiff, relating to the character of the disease which he had treated and for which he was seeking a recovery in this suit and also directions given by the plaintiff in regard to the same. These declarations and directions were not made in the presence of the deceased nor was he shown to have any knowledge of the same. They were material as bearing upon the lack of ordinary skill on the part of the plaintiff in performing the services sued for. This testimony was also excluded on

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