(Download) "Nellie Ellis as Administratrix v. Black" by Supreme Court of Alabama # Book PDF Kindle ePub Free
eBook details
- Title: Nellie Ellis as Administratrix v. Black
- Author : Supreme Court of Alabama
- Release Date : January 15, 1956
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
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GOODWYN, Justice. On May 28, 1949, Nellie Ellis, as administratrix of the estate of Louis Ellis, deceased, appellant, brought
suit in the circuit court of Jefferson County under the homicide statute, Code 1940, Tit. 7, 123, against the
Black Diamond Coal Mining Company, appellee. In her complaint, at that time consisting of one count, she alleged that her
intestate's death was caused by silicosis contracted while working in the defendant's coal mine, and that his death was a
direct result of the defendant's negligence in failing to keep the air in the mine reasonably free of silica dust. Trial of
the case resulted in a verdict and judgment in favor of plaintiff. On appeal here the case was reversed and remanded, Black
Diamond Coal Mining Co. v. Ellis, 256 Ala. 72, 53 So.2d 593, on authority of Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So.2d
586, 593. The opinion does not disclose the particular ruling or ground on which the reversal was based. In the Woodward Iron
Co. case this court held, in construing the homicide statute, 123, Tit. 7, supra, 'that the legislature did not
intend to create a cause of action occurring at the death of the injured party, if at that time the injured party was unable
to maintain a suit for personal injuries based on that occurrence by reason of the fact that either he had already sued and
recovered a judgment on account of it or he had accepted full satisfaction and release of the claim, or if his contributory
negligence proximately caused his injury, or if he permitted the claim to be barred by the statute of limitations.' [Emphasis
supplied.] That point was also involved in the case now before us on first appeal. On remandment the plaintiff amended her complaint by adding counts 2 and 3. Demurrer to each count of the amended complaint
being sustained, plaintiff took a non-suit and brought this appeal to review the rulings on the demurrers. It appears to be
recognized by the parties in their argument here that the same question decided in Woodward Iron Co. v. Craig, supra, as above
noted, is presented by the demurrers. Extensive argument is addressed to appellant's insistence that that opinion should be
changed. However, a preliminary point raised by appellant prevents us from getting to a consideration of that insistence.
It is contended that since this is an action at law, the defense of the statute of limitations must be raised by plea and
not by demurrer. In this we concur.