the defendant, and its meetings, and its capital stock. The court granted this motion, and to this ruling the defendant duly excepted.

There was, however, nothing in the bill of exceptions showing that said order was enforced and complied with. The cause was tried by the court without the intervention of the jury, and the court rendered judgment in favor of the plaintiff against the defendant for $1,033.33. To the rendition of this judgment the defendant duly excepted. The defendant appeals, and assigns as error the rulings of the court upon the pleadings and the other rulings of the trial court to which exceptions were reserved.

J. J. Willett, for appellant. Knox, Acker & Blackmon, for appellee.

SHARPE, J. In this action Calhoun county claims as for license taxes due from defendant for the years 1899, 1900, and 1901, respectively, and also as for fees earned by the county tax commissioners in reporting those taxes unpaid. The complaint was demurred to, but not on any tenable ground, and each count thereof stated a cause of action. By section 4123 of the Code, and also by the act of March 5, 1901 (Acts 190001, p. 2635), the court of county commissioners were authorized to add to state license taxes an amount for county purposes, not exceeding 50 per cent. of such state taxes. The act of February 21, 1899 (Acts 1898-99, p. 195), charged county tax commissioners with the duty of reporting delinquencies in the payment of license taxes, and provided that for performing that duty "the commissioners are entitled for each case brought before the probate judges to be paid by the delinquent in addition to the license, ten per cent. on the amount of the license so collected from each delinquent," and "that the county tax commissioners shall be entitled to receive the fees provided by the act from the tax collector and the judge of probate giving duplicate receipts therefor." These provisions, read in connection with the remainder of the last-mentioned act, sufficiently indicate that the right of collecting, and consequently of suing for, fees earned by a commissioner is primarily in the county entitled to collect the tax.

There was no misjoinder of counts in the complaint, and this is true regardless of whether the tax commissioners' fees are in the nature of costs or of a penalty. It was long ago held by this court that debt was a form of action appropriate for recovery of a statutory penalty. Spence v. Thompson, 11 Ala. 746.

The statute empowering "the court of county commissioners of each county" to levy the county license taxes does not mean that each county in the state, or each county where the licensed business is done, may add to the tax required by the state for a particular license, but is construed as permit

ting the county tax in each county wherein such particular license is issued, and in that county only. Southern Ry. Co. v. Mitchell (Ala.) 37 South. 85. Upon this consideration it must be held that the third plea was good as against any ground of demurrer interposed thereto; and also that the fact appearing in the agreed statement of evidence that defendant had in Etowah county, and in each of the years 1900 and 1901, taken out a license and paid therefor $75 to the state and $37.50 to the county of Etowah, shows the county of Calhoun was without right to recover taxes or commissioners' fees claimed on account of either of those years, and that the court erred in allowing those claims in its judgment. If, on such account, anything is due from defendant, the right to recover the same is in the county of Etowah,

The evidence showed no defense as against plaintiff's claims for taxes and fees accruing on taxes for 1899. The orders of the commissioners' court introduced to show levies of county taxes made by that court were each sufficient to create such levies, and were properly admitted in evidence.

That defendant could not avail itself of licenses issued to other corporations whose property was bought by defendant was adjudged in Southern Car & Foundry Co. v. The State, 133 Ala. 624, 32 South. 235. Since the order for the production of defendant's books was never enforced or complied with, it could not have been injurious. Reversed and remanded.

(141 Ala. 152)

SLOSS IRON & STEEL CO. v. TILSON. (Supreme Court of Alabama. July 21, 1904.)

ACTION FOR PERSONAL INJURIES-PLEADINGJOINDER OF COUNTS-BURden of

PROOF-INSTRUCTIONS.

1. In an action for personal injuries, a count at common law for negligent injury to one on defendant's premises by invitation may be joined in a complaint with counts under the employers' liability act (Code 1896, § 1749).

2. In an action for injuries to one who, as alleged in the complaint, went on defendant's premises by invitation, the burden of showing the invitation is on plaintiff.

3. Where there is evidence, though conflicting, tending to sustain the complaint, a general charge for defendant is properly refused.

4. An instruction to find for defendant if the evidence shows that defendant was ignorant of the defect which caused the injury, ignoring the duty to exercise reasonable care in ascertaining such defect, is properly refused.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by S. C. Tilson against the Sloss Iron & Steel Company. Plaintiff had judgment, and defendant appeals. Affirmed.

This action was brought by the appellee, Spencer C. Tilson, against the appellant, the Sloss Iron & Steel Company, to recover dam

3. See Trial, vol. 46, Cent. Dig. § 34.

ages for personal injuries. The complaint contained four counts, which were in words and figures as follows: "(1) Plaintiff claims of defendant fifteen thousand dollars as damages, for that heretofore, to wit, on the 30th day of November, 1900, defendant was operating a coal mine at or near Blossburg, Jefferson county, Alabama, together with certain tram cars in said mine; that on said day, while plaintiff was in the service or employment of defendants, and engaged in or about the said business of defendant in or about the operation of said mine, one or more of said cars separated from others of said cars and ran with great force or violence down an incline upon or against plaintiff in said mine, and as proximate consequence thereof plaintiff's ankle was dislocated, one or more of the bones of his ankle or leg were broken, and plaintiff was cut, mashed, bruised, sprained, one or more of his joints stiffened, and otherwise injured in his person, and was made sore and sick, was crippled and disfigured for life, was rendered for a long time unable to work and earn money, was rendered permanently less able to work and earn money; suffered great mental and physical pain, and was put to great trouble, inconvenience, and expense for medicine, medical attention, care and nursing in or about his efforts to heal and cure his said wounds and injuries. Plaintiff avers that said car or cars ran upon or against him as aforesaid and he suffered said injuries and damage by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant used in or connected with the said business of defendant, which said defect arose from or had not been discovered or remedied owing to the negligence of defendant, or of some person in the service or employment of defendant, and intrusted by defendant with the duty of seeing that the said ways, works, machinery, or plant were in proper condition, viz., the coupling appliance or apparatus by which one or more of said cars were coupled to another, or others of said cars were weak, loose, spread, or otherwise improper or unfit for the purpose for which same was being used by defendant. (2) Plaintiff refers to and adopts all the words and figures of the first count from the beginning thereof to and including the word 'viz.' where it first occurs in said count. Plaintiff further avers that the track upon which the said tram cars ran in said mines was old, worn, uneven, or otherwise improper or unfit for said purpose. (3) Plaintiff refers to and adopts all the words and figures of the first count from the beginning thereof to and including the words 'heal and cure his said wounds and injuries,' where they first occur together in said count. Plaintiff further avers that said car or cars ran upon or against him as aforesaid, and he suffered said injuries and damage by reason and as a proximate consequence of the negligence of a person in the

service or employment of defendant, and intrusted by defendant with superintendence, whilst in the exercise of such superintendence, viz., one Elwood, negligently caused plaintiff to be in a place in said mine where said cars were in danger of running upon or against him as aforesaid, without properly and sufficiently warning or notifying plaintiff of said danger. (4) Plaintiff claims of defendant the further sum of fifteen thousand dollars as damages for that heretofore, to wit, on the 30th day of November, 1900, defendant was operating a coal mine at or near Blossburg, Jefferson county, Alabama, together with certain tram cars in said mine; that on said day, while plaintiff was in said mine by the invitation of defendant, on business with defendant connected with the operation of said mine, though plaintiff was not in the service or employment of defendant, defendant negligently caused or allowed one or more of said cars to break loose from or become separated from others of said cars, and run upon or against plaintiff in said mine, and as a proximate consequence thereof plaintiff suffered the injuries and damage set out in the first count of this complaint."

The defendant demurred to the first and second counts of the complaint upon the following grounds: "(1) For that the count is vague, uncertain, and indefinite. (2) For that it does not appear what the defect com| plained of consisted in. (3) For that it does not appear that the tram cars were a part of the ways, works, machinery, or plant of the defendant." To the third count the defendant demurred upon the following grounds: "(1) For that the count fails to show any duty owed by defendant to plaintiff. (2) For that the count shows that the plaintiff assumed the risk of being in the position in which he was at the time he was injured. (3) For that the negligence complained of is not shown by the count. (4) For that it is not averred or shown that the superintendent or person charged with the superintendence was guilty of any negligence." To the fourth count the defendant demurred upon the following grounds: “(1) For that the count fails to show any relation existing between the plaintiff and defendant whereby the defendant owed any duty to the plaintiff. (2) For that the count shows that the plaintiff was a mere trespasser. (3) For that the count shows that plaintiff voluntarily assumed the risk of being in said coal mine." These demurrers were overruled. Thereupon the defendant pleaded the general issue, and by several special pleas set up the contributory negli gence of the plaintiff. The facts of the case are sufficiently stated in the opinion.

The court, at the request of the defendant, gave the jury the following written charges: "(11) The plaintiff in this case cannot recover as a person invited upon the premises of the defendant unless there was

a defect or defects in one or more of the tram cars, known to the defendant and unknown to the plaintiff. (12) If from the evidence you believe that the plaintiff was at the place where he was injured only by invitation of the defendant, I charge you that you cannot render a verdict in his favor, unless you also believe from the evidence that the defendant actually knew that there was some defective condition about the cars which ran down the slope, which would probably cause them to break loose and run down the slope." The defendant also requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of the charges as asked: "(1) If you believe the evidence in this case, you must find a verdict in favor of the defendant. (2) If you believe the evidence in this case, you cannot find for the plaintiff under the fourth count of the complaint. (3) I charge you that you cannot find from the evidence that the plaintiff was at the place where he claims to have been hurt by invitation of the defendant. (4) If you believe from the evidence that the plaintiff went into the slope only by invitation of the defendant, then I charge you that he assumed all the risks which were incident to letting down tram cars into the mine. (5) I charge you that you cannot find from the evidence in this case, if you believe it, that the plaintiff was in the service or employment of the defendant at the time he claims to have been injured. (6) If you believe from the evidence that the plaintiff was at the place where he was injured by invitation of the defendant, you cannot find a verdict in his favor, unless you also believe from the evidence that the defendant knew of the defect in the tram car, if from the evidence you believe there was such a defect. (7) If you believe the evidence, you cannot find for the plaintiff under the first count of the complaint. If you believe from the evidence that the defendant did not know that the tram cars which broke loose and ran down the slope were in a defective condition, you must render your verdict in favor of the defendant, although from the evidence you may believe that there was a defect in one or more of the cars. (9) If you believe from the evidence that the plaintiff was at the place where he was injured by invitation of the defendant, and if you believe from the evidence that the defendant did not know that the tram cars which broke loose and ran down the slope were in a defective condition, you must render a verdict in favor of the defendant, although from the evidence you may believe that there was a defect in one or more of the tram cars. (10) If from the evidence you believe that the plaintiff was at the place where he was injured by invitation of the defendant, I charge you that you cannot render a verdict in his favor under the fourth count of the complaint, unless you also believe from the evidence that the defendant

(8)

actually knew that there was some defective condition about the cars which ran down the slope which would probably cause them to break loose and run down the slope."

There were verdict and judgment for the plaintiff, assessing his damages at $450. The defendant appeals, and assigns as error the rulings of the court upon the pleadngs and the refusal of the court to give the several charges requested by the defendant.

Walker, Tillman, Campbell & Walker, for appellant. Bowman, Horsh & Beddow, for appellee.

HARALSON, J. The complaint consists of four counts. The first three are framed under the employers' liability act,-Code 1896, 81749,-and the fourth under the common law. There exists no reason why such causes of action, though not consistent with each other, may not be united in the same complaint, in different counts.

That the first three are sufficient as against the demurrers to them, has been too often in principle decided to require further consideration. A. G. S. R. Co. v. Davis, 119 Ala. 572, 24 South. 862; B. C. M. Co. v. Parker, 134 Ala. 293, 32 South. 700, and other cases cited in brief for appellee.

The fourth count avers that plaintiff was in the mine "by the invitation of defendant on business with defendant connected with the operation of said mine, though plaintiff was not in the service or employment of defendant," and sets out the negligence of which complaint is made, which caused the injury to plaintiff by defendant.

"All the authorities agree that it is incumbent on the owner of premises, upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof, and the purpose for which the invitation was extended," and the question whether the plaintiff was on defendant's premises by invitation, express or implied, is in general one for the jury. The burden of showing that plaintiff entered by invitation is on him. 21 A. & E. E. Law (2d Ed.) 471, 472, and authorities there cited; West v. Thomas, 97 Ala. 622, 11 South. 768.

The owner is under no duty to keep the premises safe as to a mere trespasser who, "ordinarily assumes all risk of danger, and who, in order to recover, must show that the injury was wantonly inflicted, or that the owner, being present, might have prevented the injury by the exercise of reasonable care after discovering the danger." "A person," says Judge Cooley, who gives such an invitation, "especially when he gives it wholly or in part for his own interest, * and thereby invites others to come upon his premises, assumes to all such who accept the invitation, the duty of warning them of any danger in coming, which he knows of, or ought to know of, and of which they are not

*

aware." Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154; Samuelson v. C. I. Min. Co., 49 Mich. 170, 13 N. W. 499, 43 Am. Rep. 456, and numerous citations there cited; Bennett v. Railroad, 102 U. S. 577, 26 L. Ed. 235.

"To trespassers or idlers, or persons visiting the premises merely for their individual benefit, or from curiosity, the defendant owes no duty other than, that no willful or wanton injury should be done. To create a duty to the plaintiff, he must have sustained a relation to the business, or to the defendant, equivalent to an invitation or inducement to come on the lot (premises). The duty to keep the lot (or premises) free from defect likely to produce injury only extends to persons sustaining such relation." Campbell v. Lunsford, 83 Ala. 515, 3 South. 522; M. & E. R. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72.

As to whether the plaintiff was in the employment of defendant, he testified that, "On the 30th day of November, 1900, I was at the mines operated by the Sloss Iron & Steel Company, at Blossburg, where I had secured employment in the mine. I had secured a job from the foreman, previously. My business in the mine at that time, was to select a place that he had promised me to work, which I was doing under the instruction of the foreman. I had a conversation prior to that time with him. I was living there at the time of the injury, in Mr. Watt's house, which he rented me. I had moved my family there, in order to go to work. According to the mine foreman's instructions, I went [in the mine] to hunt me a place," etc. He further testified in substance, that Mr. Elwood, the foreman, to whom he was introduced, said he would give him a job, but that he did not go to work that day, because his family was not there; that he went and got his family and returned in about a week, and told the foreman, that he was ready to go to work, and he replied, "When you get ready, your place is ready. I will hold your place for you;" that the foreman did not designate any particular room for him to work in; that he looked for the foreman the day he was ready to go to work, and was told he was in the mine, and he went in to look for him, to have his room pointed out; that in the mine there were a number of rooms vacant, and it was the rule with the foreman to say, "You can look at them and select your room."

It was also shown by Kilpatrick, a witness for the plaintiff, who had been in the mining business twenty years, that he was acquainted with the mining boss of this mine at the time, whose name was Sam Elwood, and he was the one who employed the men to work in these mines; that when he employed miners it was customary and usual to let them go in and select their

rooms.

Woodson testified, that the miners secured jobs by going to the bank boss and asking him for them, who would tell them that they could get jobs, and that they could go in the mine and hunt for a place or room, etc.

The defendant's evidence tended to show, that before plaintiff was injured, he had not been employed by defendant, and that he went in the mines voluntarily and without invitation. The evidence for plaintiff also tended to show, that the defects complained of in the machinery existed, and that defendant's superintendent knew of such defects.

The questions for review, other than such as have been considered, arise on charges asked for the defendant and refused. We consider only the charges refused, for the refusal of which, errors are insisted on.

Refused charge 1, was the general charge in favor of the defendant. The second, was the same charge as to the fourth count, and the seventh was a like charge on the first count. These charges were each properly refused. The plaintiff had a right to recover on the first count, if he proved the allegations, or failing, on the fourth, if he proved its averments. There was evidence by the plaintiff, tending to show, the plaintiff's right of recovery under the first count, and that for defendant, tended to show that plaintiff was not an employé of the company at the time he received his alleged injury and had no right of action on that count. The general charge, therefore, could not have been given against the plaintiff on the whole complaint, nor on count 1. If the jury should have found, under proper instructions, that the plaintiff was not an employé when he was injured, and, therefore, could not recover on the first count, but that he was in the mine by invitation of defendant, and its other averments were proved, it was open to them to find for him on the fourth count. But, the evidence as to the averments of this count was, also, in conflict, and the general charge as requested by defendant as to it, was properly refused.

The sixth charge instructs a finding for defendant, unless the jury believe from the evidence that the company knew of the defect in the tram cars, if such defect existed. It ignores the exercise of reasonable care to have ascertained the defect, the law being that one inviting another on his premises on his own business, owes the duty to the one so invited, of exercising reasonable care for his safety. The eighth, ninth and tenth charges are subject to the same vice as the sixth. Moreover, it appears, that the court, too favorably to defendant, gave charges 11 and 12, requested by it, containing substantially the same instructions as requested in said charges 8, 9 and 10; and if there was any error in the refusal to give said charges, it was error without injury.

From the evidence in the case, it does not

appear that the judgment of the court in overruling the motion for a new trial was plainly erroneous. Affirmed.

(141 Ala. 325)

LOUISVILLE & N. R. CO. v. ROBINSON. (Supreme Court of Alabama. July 21, 1904.) AMENDED COMPLAINT ACTION FOR WRONGFUL DEATH-INSTRUCTIONS.

1. Under Code 1896, § 25, neither the father nor mother can bring an action for injuries to a minor child resulting in death. The mother, as administratrix of a minor, who was killed by the alleged negligence of defendant, brought an action as alleged "under the provisions of section 25 of the Code." Thereafter plaintiff amended her complaint by striking out the words quoted, leaving a right of action good under section 27. Held, that the amendment was properly allowed, it not stating a new and different cause of action.

2. A cause of action under Code 1896, § 25, for the death of a minor child, is not barred until two years.

3. In an action against a railroad company for the death of a child at a crossing, it is proper to refuse an instruction asked by defendant, which predicates the freedom of defendant from liability on the inability of the engineer to stop the train in time to prevent the accident, if decedent suddenly ran on the track in front of the engine, where the question as to whether the speed of the train might have been diminished after discovering decedent's peril was clearly within the issues, as the instruction asked ignores such question.

4. In an action by the administratrix of a minor child to recover for her death at a crossing an instruction that no duty existed by defendant to "plaintiff" either as to speed or efforts to stop the train, is misleading in the use of the word "plaintiff," as the administratrix was not present at the time of the accident, and had no connection with it.

Appeal from Circuit Court, Etowah County; J. A. Bilbro, Judge.

Action by Nancy Robinson, administratrix, against the Louisville & Nashville Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.

The complaint contained several counts, in each of which is the following statement: "Plaintiff, who sues as the administratrix of the estate of Corinne Green, and brings this action under the provisions of section 25 of Code 1896, claims of the defendant," etc. There was a demurrer to each count of the complaint upon the ground that at the time of the institution of the suit the claim was barred by the statute of limitation. This demurrer was overruled. On May 20, 1899, the plaintiff amended her complaint by striking out the words, "brings this action under section 25 of the Code of 1896." The defendant objected to such amendment of the complaint upon the ground that it introduces a new cause of action, and also that the claim sought to be enforced by the claim as amended was barred by the statute of limitation. The court overruled the objection, and allowed the complaint to be amended. After the amendment of the complaint the defendant demurred to the complaint as amended upon

the ground that it was a departure of the original cause of action, and by the amendment there was introduced a new cause of action. This demurrer was overruled. All the other facts of the case are sufficiently stated in the opinion.

J. M. Falkner and Geo. W. Jones, for appellant. W. T. Murphree and Dortch & Martin, for appellee.

HARALSON, J. It is admitted by counsel for defendant, that section 25 of the Code of 1896 relates to a mere injury to a minor child, and that neither the father, nor the mother, the father on account of his disabilities as named in said section being precluded from suing, can bring an action for injuries to a minor child, when the death of the minor is caused. Woodward I. Co. v. Cook, 124 Ala. 349, 27 South. 455; Williams v. S. & N. A. R. Co., 91 Ala. 635, 9 South. 77.

Each of the counts in the complaint, the suit having been instituted by the mother as administratrix of the deceased child,— the father being dead,-to recover damages from the defendant for the alleged killing of the child, contains the words, "and brings this action under section 25 of the Code of 1896." The complaint shows upon its face, that the action could not be maintained under that section. In addition to what has been stated, as to the construction of section 25, the suit was not instituted until more than twelve months after the child was killed, at which time suit under said section was barred by the statute of limitations of one year. Code 1896, § 2801.

The words of the counts above quoted, that the action was brought under section 25, were entirely superfluous, and really had no proper place in them. It is admitted by counsel for defendant that this averment was a mistake. However, the complaint was demurred to, as showing on its face, that the suit was barred by the statute of limitations of one year, at the time it was instituted. The plaintiff afterwards, amended each count by striking out those words, and as thus amended, the complaint was good under section 27 of the Code, under which this action is appropriately brought, and not barred until two years from and after the death of the intestate. Under this section the damages are punitive,-to prevent homicides,-and not compensatory only as under section 26. Williams' Case, supra; Buckalew v. T. C. & I. Co., 112 Ala. 148, 20 South. 606; A. G. S. R. Co. v. Burgess, 116 Ala. 515, 22 South. 913. ›

The contention of defendant is, that by striking out the words referred to in the complaint, it left an action under section 26 and not under section 27 of the Code, and that the action was barred in one year. Code 1896, § 2801, subd. 5. But this is a mere assumption on the part of the pleader. If the action with those words stricken, left a cause of action under section 27, and good in