This is an appeal from a judgment of the Circuit Court of Coffee County awarding appellee, plaintiff below, $4,000 for damages claimed for alleged paint or lead poisoning, resulting from spraying trailers in an enclosure not properly ventilated. This is a companion case to Dorsey Trailers v. Foreman, 260 Ala. 141, 69 So.2d 459 and the issues and evidence in both cases are substantially the same.
Appellant, both in brief and oral argument, relies principally upon assignment of error No. 6. This assignment relates to an additional oral charge given by the Court to the jury after they had deliberated for several hours and had failed to arrive at a verdict. The jury returned to the court room for additional instructions and the parties and counsel being present, the following transpired:
It is obvious that the question in the last sentence by the Court was directed to the attorneys rather than to the jury, because the attorney for the plaintiff answered "yes, sir" and the attorney for the defendant remained silent. The appellant contends that the statement by the court in answer to that made by juror Boswell is "absolutely in conflict with the original charge" and contains "two direct statements which are in conflict" and that it was "calculated to mislead the jury". With these contentions, we cannot agree.
On the trial, Dr. Crook, a witness for the appellee, testified that he had examined and treated the appellee on October 17, 1948. This date is more than one year prior to the date of the filing of the complaint on October 29, 1949. In addition, Dr. Crook also testified that he had examined the appellee in October 1949, June 1950 and January 1954. In the original charge
We find nothing conflicting or misleading in the additional oral charge given by the court when the jury returned for additional instructions. It was simply a statement to the effect that Dr. Crook's testimony could and should be considered but that his testimony relating to any injury or damage occurring more than one year prior to the date of filing of suit, was barred by the statute of limitations.
Moreover, even if it should be concluded that the complained of statement was erroneous, there was no objection interposed to it at the time it was made, although the trial court invited objection or suggestion with the question "is that a fair statement gentlemen?"
In the case of Lusk v. Wade, 259 Ala. 555, 67 So.2d 805, we said:
No reversible error appears in the record and the judgment is due to be affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.