(No. 20122.) (Supreme Court of Mississippi. June 3, 1918.) Appeal from Circuit Court, Lamar County; A. E. Weathersby, Judge. GRAND LODGE OF MISSISSIPPI FREE J. J. NEWMAN LUMBER CO. v. SCRUGGS. Suit between the Grand Lodge of Mississippi Free and Accepted Masons and Vicksburg Lodge, No. 36, Free and Accepted Masons. Decree for the latter, and the former appeals. Aflirmed, with directions to receiver to pay over moneys coming into his hands since the decree below. Robert B. Mayes, of Jackson, and Moody & Williams, of Indianola, for appellant. Theo. McKnight, of Vicksburg, for appellee. PER CURIAM. Affirmed, with direction to receiver to pay over moneys coming into his hands since the decree below. SULLIVAN et al. v. INDEPENDENCE CON- (Supreme Court of Mississippi. June 3, 1918.) Action between W. L. Sullivan and others and the Independence Consolidated School District of Panola County. Judgment for the latter, and the former appeal. Affirmed. Lomax B. Lamb, of Batesville, for appellants. F. H. Montgomery, of Sardis, and J. E. Johnson, of Batesville, for appellee. PER CURIAM. Affirmed. Action between the J. J. Newman Lumber Company and Frank Scruggs. Judgment for the latter, and the former appeals. Affirmed. Tally & Mayson, of Hattiesburg, and J. N. YAZOO & M. V. R. CO. v. CATCHINGS. (No. 20059.) (Supreme Court of Mississippi. June 3, 1918.) Appeal from Circuit Court, Coahoma County; W. A. Alcorn, Jr., Judge. Action between the Yazoo & Mississippi Valley Railroad Company and Lillie Catchings. Judgment for the latter, and the former appeals. Affirmed. Robt. B. Mayes, of Jackson, for appellant. Maynard & Fitz Gerald, of Clarksdale, and Frank Roberson, of Jackson, for appellee. PER CURIAM. Affirmed. FOSTER v. DEAN. (No. 20235.) (Supreme Court of Mississippi. June 3, 1918.) Appeal from Chancery Court, Leflore County; Joe May, Chancellor. Suit between Will Foster, guardian, and D. W. Dean. Decree for the latter, and the former appeals. Affirmed. S. R. Coleman, of Greenwood, for appellant. Owen & Roberts, of Cleveland, for appellee. PER CURIAM. Affirmed. STATE v. KIMBROUGH. (No. 19911.) (Supreme Court of Mississippi. June 3, 1918.) Appeal from Chancery Court, Lafayette County; J. G. McGowen, Chancellor. Suit between the State and D. M. Kimbrough. Decree for the latter, and the State appeals. Affirmed. S. A. Morrison, of Grenada, for the State. H. H. Creekmore, of Water Valley, for appellee. PER CURIAM. Affirmed. (201 Ala. 382) SEGREST v. RODEN COAL CO. (Supreme Court of Alabama. April 4, 1918.) thus accumulate in the left twelfth heading, which facts were known to intestate; that intestate knew that a crew of men in the mine at that time were dragging a piece of 293(14)-INJU- cable out of the left ninth air course through RIES TO SERVANT-ACTIONS-INSTRUCTIONS- or under said curtain, and that same would GROUNDS. likely be lifted up to get said cable under, and would likely be left up; that with all the knowledge aforesaid intestate negligently failed to use said lamp to ascertain if gas had accumulated in said twelfth left heading, and as a proximate consequence said explosion occurred. In an action for the death of a miner due to an explosion of gas, an instruction that, if the means provided by defendant for the circulation of air in the mine were ample to properly conduct the air to the entries and working places, and dilute, carry off, and to render harmless the explosive gases generated, verdict should be for defendant, was erroneous as calling for a finding for defendant if it provided ample means of ventilation, but omitted the necessity of maintaining the means or appliances to the extent that the gas would be diluted so as to be rendered harmless; Acts 1911, p. 515, § 40, providing that the minimum amount of air to be supplied shall be 100 cubic feet per minute per man and 500 cubic feet for mule or horse; it being the intent of the Legislature by such statute to protect the miner from obnoxious and explosive gas, and that such duty is nondelegable. 2. MASTER AND SERVANT 293(14)—INJURIES TO SERVANT-ACTIONS-INSTRUCTIONSGROUNDS. In an action for the death of a miner from the explosion of gas, instructions, exempting defendant from liability if the air in the mine had been short-circuited by raising a curtain in an air course, were erroneous, as failing to designate the person through whose acts such curtain was raised. Appeal from Circuit Court, Bibb County; B. M. Miller, Judge. Action by G. W. Segrest as administrator of the estate of Grover Finley, deceased, against the Roden Coal Company, for damages for the death of his intestate, while in the service and employment of defendant. Judgment for plaintiff, and defendant appeals. Reversed and remanded. The action was based upon the negligence of defendant in failing to provide sufficient air in the mine, and because of said failure gas is generated in said mine, became ignited, and caused an explosion which killed plaintiff's intestate. Defendant's eighth plea set up that intestate was an old and experienced miner, that he knew how to use a safety lamp and ascertain whether or not there was any gas in dangerous or explosive quantities in the mine; that intestate had said lamp at his disposal and could have used same; that it was tris duty to use said lamp and ascertain if there was any gas in the place where he was working in dangerous or explosive quantities; that he negligently failed to use this safety lamp to ascertain the presence of gas in the place where he was working, and as a proximate consequence met his death in said explosion; that there was a certain canvas curtain up at the ninth left air course and panel No. 1 in said mine; that said curtain, if lifted up and left up, would likely cause a short-circuiting of the air in the twelfth left heading, and gas in dangerous and explosive quantities to The following are the charges noticed in the complaint: Assignment 1. The court charges the jury that, if you believe from the evidence that on the occasion complained of the means provided by defendant were the circulation of air to the main entrance and other working places in its mine were ample to properly conduct said air to said entries and working places, and dilute, carry off, and render harmless the explosive gases generated in said mine, you should return a verdict for defendant. Assignment 2. Unless plaintiff reasonably satisfies you from the evidence that the explo sion was caused by the carelessness of defendant company, or its superintendent, Mr. Dryer, in respect to providing and maintaining the means of ventilating the mines, you should have returned a verdict for defendant, and after a full and fair consideration of all the evidence you are reasonably satisfied from the evidence as to whether or not the explosion was caused by a careless failure to maintain and provide ample means of ventilation, or by the leaving up of the curtain at the ninth left air which caused the explosion, then you cannot course and panel No. 1, and you cannot say find for plaintiff. Assignment 3. If you believe from the eviploded was caused by the leaving up of the dence that the accumulation of gas which excurtain at the ninth left air course in panel No. 1, you should return a verdict for defendant. Assignment 4. Under the evidence and issues in this case, plaintiff is not entitled to recover by proof alone that his intestate was killed in the gas explosion, but he must go further, and reasonably satisfy your mind from the evidence that such explosion was directly and proximately caused by a failure to provide ample through the main entries and other working placmeans of ventilation for the circulation of air es to an extent that it would dilute, carry off, and render harmless the explosive gases generated in said mines, and properly conducted to all working places in the mine; and, if the jury are reasonably satisfied from the evidence that such means were provided, but that the men lifted the curtain at the ninth left air the air and caused the explosion, then you course and panel No. 1, that this short-circuited should return a verdict for defendant. Assignment 5. If you are reasonably satisfied from the evidence that plaintiff's intestate, Grover C. Finley, knew, or ought to have known, that to lift up and leave up the canvas curtain at the ninth left air course and panel No. 1 would likely cause a short-circuiting of the air in the twelfth left heading, and thus likely cause an accumulation of gas in dangerous quantities in said twelfth left heading, and likely to cause an explosion, and if you further believe from the evidence that the air was thus short-circuited, and the explosion caused, you should return a verdict for defendant. Assignment 6. If the accumulation of gas in the twelfth left heading on the occasion complained of was caused, not from any fault in the means of ventilation provided and maintained by defendant, but because the air was short-circuited by the lifting by the means of the curtain at the left ninth air course and panel No. 1, with or without plaintiff's intestate's knowledge that the curtain had been lifted, defendant would not be liable to plaintiff in this action. Assignment 7. If you believe from the evidence that the mine foreman designated Grover Finley to act as safety man for the crew on the occasion complained of, and to make examination for gases and find out whether or not there was any gas in the place where he worked, and where the other man worked, that he knew how to use a safety lamp, and if you further believe that Finley negligently failed to use this safety lamp to ascertain the presence of gas in the places where he was working, and that this conduct on his part proximately contributed to cause the explosion, you should return a verdict for defendant, and this would be true whether or not the fire boss, with the proper state fire boss' certificate of competency, was sent with the man to examine the working places before they went into the mine. Assignment 8. If you believe from the evidence that plaintiff's intestate Grover Finley was an experienced miner, that he knew how to use the safety lamp, and ascertain whether or not there was any gas in dangerous or explosive quantities in the mine, and that he had a safety lamp at his disposition, and could have used the same, and that the mine foreman had put him in charge of the crew of men as safety man, and gave to him the duty to use a safety lamp and ascertain if there was any gas in the place where he was working in dangerous and explosive quantities, that he negligently failed to use this lamp to ascertain the presence of gas in the place where he was working, and as a proximate consequence the explosion occurred, you should find a verdict for defend duty, as held in the Walker Case, supra. Had the Legislature provided merely the supplying of a certain amount of air, instead of requiring that the gas be diluted, carried off, and rendered harmless, the mine owner would, no doubt, meet the statutory requirement by supplying the requisite amount. But this was not done, and the amount of air provided is a legislative ascertainment that nothing short of the amount of air so prescribed will accomplish the purpose. The result is the law requires the mine owner, or superintendent, to see that all noxious and explosive gases generated in the mine are so diluted or carried out as to render the same harmless, and that nothing less than air to the extent of 100 cubic feet per man per minute and 500 cubic feet for mule or horse will accomplish the purpose. [1] It is true that in the opinion upon rehearing in the Walker Case, supra, we said it "may be" that the act of 1911 would change the rule, and that the mine owner would meet the requirement when he furnished the requisite amount of air. This expression, however, was in no sense a construction of the act of 1911, which did not apply to the case under consideration, and it was not then realized that the act, instead of prescribing the amount of air, merely fixes a minimum amount. The charge, copied in assignment of error No. 1, given for the defendant, did not conform to the statutory requirement, as it called for a finding for the defendant if it provided ample means of ventilation, but omitted the necessity of maintaining the means or appliances to the extent that the gas would be diluted or swept out so as to render the same harmless. Charles A. Calhoun and John T. Glover, Nor can the giving of said charge be justiboth of Birmingham, for appellant. Stoke-fied upon the suggested idea that the comly, Scrivner & Dominick, of Birmingham, and John T. Ellison, of Centerville, for appellee. ant. Assignment 9. If the explosion occurred because the curtain at the ninth left air course and panel No. 1 was left up by the men, there would be no liability upon defendant. plaint is so worded as to entitle the defendant to a verdict if the proof failed to show a noncompliance with either conjunctive averment under the case of Birmingham Ry. Co. v. Baylor, 101 Ala. 488, 13 South. 793, and other cases cited. The complaint followed the statute, and the gravamen of the action was not a mere failure to provide the means, but to provide and maintain the same to the extent as required by the statute, and the plaintiff would meet the averment by proof of a failure to supply the air to the extent of accomplishing the purpose, whether it was due to the insufficiency of the means or a failure to operate and maintain the same even if amply and sufficiently provided. ANDERSON, C. J. In the case of Walker v. Birmingham Coal & Iron Co., 184 Ala. 425, 63 South. 1012, in construing section 1016 of the Code of 1907, we held that it was the imperative duty of the mine owner or superintendent to keep the mine swept out and freed from noxious gases generated therein, that this was a nondelegable duty, and that the mere furnishing of the means would not suffice. Section 40 of the Act of 1911, p. 515, while succeeding section 1016 of the Code of 1907, makes no practical change except to include explosive as well [2] The trial court erred in giving the as noxious gases and to also provide that the charge for the defendant, copied in the secminimum amount of air to be supplied shall ond assignment of error. If not otherwise be 100 cubic feet per minute per man and bad, it charges the plaintiff's intestate with 500 cubic feet per mule or horse. We still the act of any one in leaving the curtain up think that it was the intent of the Legisla- at the ninth entry. The plea charges that ture to protect the miner from the danger the intestate left it up, but the charge does of noxious and explosive gases generated not confine it to the plaintiff or to one for sible. From aught that appears from the charge, the panel may have been left up by some servant or agent of the defendant other than the intestate, charged with the duty of maintaining and operating the ventilating system, and keeping the panel down may have been essential to a proper ventilation. Of course, if the intestate left it up, and that was the proximate cause of the injury, the defendant would be entitled to a verdict under its special plea invoking this defense. Or if the fire was caused proximately by the panel being left up by one for whose act the defendant was not answerable to the intestate, the defendant would not be liable, as the injury did not thus result from a breach of the statute, but by some intervening act of the intestate, or other person for whose act the defendant was not liable; but the charge does not confine the raising or leaving the panel up to one for whose conduct the defendant was not responsible. Charges set out in assignments of error 3, 4, 6, and 9, if not otherwise faulty, possess the same vice as the one set up in assignment numbered 2. The men, or some of them, referred to in the charges may have been charged with the duty of looking after the ventilation of the mine. These charges are not so worded as to be governed by the defendant's plea 8. The charge copied in the fifth assignment of error fully hypothesized the material averments of defendant's plea 6, to which no demurrer seems to have been interposed, and whether said plea would have withstood an appropriate demurrer we need not decide as it is sufficient to say that the giving of this charge was not error under said plea 6. The charges copied in assignments of error 7 and 8 seem to conform to defendant's pleas of contributory negligence. The charge copied in the tenth assignment of error could probably have been refused without error, as it is not predicated upon any issue presented by the pleading, as there is no count for a failure of the fire boss to examine the working place, though the giving of same was not reversible error. The judgment of the circuit court is re versed and the cause is remanded. Reversed and remanded. manner assess the value, and if in possession of the plaintiff assess damages for its detention, where plaintiff has failed to prove the value of the property sued for judgment cannot be entered for him, and it is not error to give a general charge for defendant. 2. DETINUE 18-Burden of Proof-TITLE. The burden is on plaintiff in detinue to erty in all or some identified part of the chatprove that he has a general or special proptels sued for, with the right to immediate possession, and if he has never had actual possession, he must show legal title. 3. BAILMENT 16-CONVERSION - ASSIGN THOMAS, J. The suit is in detinue, for the recovery of "all plates and dies, together with the records and indexes appertaining thereto, formerly used in the stationery and engraving business by the E. O. Zadek Jewelry Company at Mobile." All the evidence being introduced, each of the parties litigant requested in writing the general charge, which was refused to the plaintiff. When defendant requested said charge, the court asked its counsel if they "ought not to prove the value of the property sued for," to which counsel replied that: "In view of the fact, as shown by the sheriff's return, that the defendant had given bond and had possession of the property sued for, and that the court had already stated, after hearing the statements of the counsel to the jury, that upon the facts there stated the affirmative charge would be given for the defendant, it was unnecessary for them to prove the value of the property." firmative charge for the defendant, and refusThe rulings of the court in giving the afing the same to the plaintiff, are each duly assigned as error. tion of the several assignments of error based Pretermitting, for the moment, a consideraon rulings on the admission of evidence, it is to be observed that there was no evidence from which the jury could determine the alternate value of the property for which this suit was brought; and such being the fact, even if the evidence had otherwise warranted a verdict in his favor, plaintiff was not entitled to recover. The statute reads: "Upon the trial, the jury must, if they find for the plaintiff, assess the value of each article separately, if practicable, and also assess damages for its detention; if they find for the defendant, they must in like manner assess the value, and, if in the possession of the plaintiff, assess damages for its detention. Judgment against either party must be for the property sued for, or its alternate value, with damages for its detention to the time of trial." Code See, also, Hooper v. Pierce, 151 Ala. 505, 44 1907, § 3781. A judgment entry in detinue which fails to assess the value of the property sued for, and for which recovery is had, or its alternate value, is insufficient as not being in compliance with the statute. Slaughter v. Webster, 194 Ala. 642, 70 South. 128; Kirkland v. Pilcher, 174 Ala. 170, 57 South. 46; Jernigan v. Willoughby, 159 Ala. 650, 48 South. 812; McCullough v. Floyd, 103 Ala. 448, 15 South. 848; South. Warehouse Co. v. Johnson, 85 Ala. 178, 4 South. 643; Lassiter v. Thompson, 85 Ala. 223, 6 South. 33; Wittick's Adm'r v. Keiffer, 31 Ala. 199; Brown v. Brown, 5 Ala. 508; Nixon v. Smith, 193 Ala. 443, 69 South. 117. Chief Justice Stone (Southern Warehouse Co. v. Johnson, supra), discussing the reason of the statutory requirement, had this to say: "In the absence of proof to the contrary, we must presume it was practicable to assess their value separately. * * * This is a statutory requirement, whose policy is obvious. The party cast in the action may be able to deliver a part of the property, and not the residue. Our rulings are all to the effect that a failure to assess the separate values, when practicable, is a reversible error. Jones v. Anderson, 76 Ala. 427; Townsend v. Brooks, 76 Ala. 308; Tait v. Murphy, 80 Ala. 440 [2 South. 317]; Jones v. Anderson, 82 Ala. 302 [2 South. 911]; Savage v. Russell, 84 Ala. 103 [4 South. 235]. Jones v. Pullen, 66 Ala. 309; Nixon v. Smith, 193 Ala. 443, 69 South. 117; Slaughter v. Webster, 194 Ala. 642, 70 South. 128. "If the alternate values of the specific chattels sued for are not to be had, the verdict and judgment should be for the value thereof as assessed by the jury," where the plaintiff recovers. Kirkland v. Pilcher, 174 Ala. 170, 57 South. 46. South. 386; Averett v. Milner, 75 Ala. 505; Appellant in argument insists that it will be noted that: "Neither the value of the property involved in this suit nor the value of the right to the custody and possession thereof was proved, but this, of course, was entirely unnecessary. The defendant gave bond and took possession of the property sued for, and has at all times since retained such possession. In fact sel for the defendant [appellee] stated that under the circumstances mentioned, it was unnecessary to prove the value of the property involved in the suit." * * ** coun Cited in support of this position are the cases of Lucas v. Daniels, 34 Ala. 188, 191; Jones v. Pullen, 66 Ala. 306, 310; Barnhill v. Howard, 104 Ala. 412, 417, 16 South. 1; Padgett v. Gulfport Fertilizer Co., 11 Ala. App. 366, 381, 66 South. 866. This statement of defendant's counsel was in reply to the question of the court as to the necessity for the defendant to prove the value of the property sued for; it answered that this burden of proof did not rest on the defendant. It was no answer as to that proof by the plaintiff, on which to rest a judgment; nor was it a waiver of such necessary proof by the plaintiff. Judge Mayfield, in his Digest of Alabama Reports (volume 6, p. 268, § 45), observes that "the law does not require a separate assessment of value of each article in all actions of detinue" (Hammond v. Lusk, 150 Ala. 487, 43 South. 573; Howard v. Deens, 143 Ala. 423, "If the verdict should be for the plaintiff, and 39 South. 346; Downs v. Bailey, 135 Ala. 329, the property is in the possession of the substi- 33 South. 151); and that it is not error to fail tuted defendant, the alternate value of the prop- to assess the value of each article "if the erty must be assessed by the jury; or if the property is in the possession of the successful verdict be for the substituted defendant, and the property in the plaintiff's possession, its alterparty." This, in effect, was the reply of nate value must also be assessed. Section 1476 defendant's counsel to the court's inquiry as of the Code of 1896. When the property is in to the necessity of assessing the value of the the possession of the substituted defendant, as property in defendant's possession, when the here, to entitle the plaintiff to recover, he must affirmative charge was requested by, and givoffer proof of its value. This burden is upon him, and not upon the defendant. In en in behalf of defendant. Judge Stone short, in the absence of some evidence of the supports this codification of the earlier decivalue of the machine at the date of the bringing of the action in its then condition, the whole matter with respect of value was left at large and to the guess of the jury. Gerson v. Norman, 111 Ala. 433 [20 South. 453]. The giving of the affirmative charge at the defendant's request was proper." Hensley v. Orendorff, 152 Ala. 599, 605, 606, 44 South. 869, 871. sions on the point by Judge Mayfield. He said: The "The plaintiff made the necessary oath, and the sheriff took possession of the property under the writ. The defendant neglecting or failing to give bond for the delivery of the property, if cast in the suit, the plaintiff gave bond, the possession of the property sued for. under section 2943 of the Code, and received plaintiff was therefore in possession of the property when the case was tried; and, succeeding in the action, there could be no reason for assessing its value, either separately or in gross. It could have accomplished no result whatever, and the defendant was in no sense injured by the failure. Miller v. Jones, 29 Ala. 174; Rambo v. Wyatt, 32 Ala. 363, 70 Am. Dec. 544; Lucas v. Daniels, 34 Ala. 188; Rose v. Pearson, 41 Ala. 687." Jones v. Pullen, 66 Ala. 309, 310: Dykes v. Clarke, 98 Ala. 657, 13 South. 690. The holding on this point in Gerson v. Norman, 111 Ala. 433, 20 South. 453, was to the effect that, on the trial of an action of detinue for cotton, which is in the possession of the defendant under a forthcoming bond, though it may not be necessary to prove the value of each bale of cotton separately, yet it is necessary to furnish proof by which the jury can ascertain the aggregate value of the property sued for; and proof of the “value of the cotton during the year" of its wrongful detention, without any evidence of the grade or [1] There was no evidence of such value of quantity, is insufficient, and that a verdict the property sued for, offered by plaintiff or |