Opinion
1 Div. 124.
January 22, 1920.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Smiths, Young Leigh, of Mobile, for appellant.
Count 4 was subject to the demurrers interposed thereto. 166 Ala. 437, 52 So. 38; 171 Ala. 251, 55 So. 170; 183 Ala. 310, 62 So. 804; 183 Ala. 298, 62 So. 808; 188 Ala. 337, 66 So. 85; 201 Ala. 141, 77 So. 565; 201 Ala. 553, 78 So. 907; 164 Ala. 62, 51 So. 345. The court erred in its rulings upon the evidence. 144 Ala. 373, 39 So. 654; 192 Ala. 23, 68 So. 254; 192 Ala. 373, 68 So. 283. The court erred in its oral instructions to the jury. 179 Ala. 213, 60 So. 175; section 2484, Code 1907; 100 Ala. 187, 14 So. 175; 124 Ala. 349, 27 So. 455; 200 Ala. 288, 76 So. 54; 161 Ala. 135, 49 So. 755, 135 Am. St. Rep. 118, 18 Ann. Cas. 477; 163 Mich. 564, 128 N.W. 784, 31 L.R.A. (N.S.) 519, Ann. Cas. 1912A, 988, and note; 60 Md. 340, 45 Am. Rep. 739; 24 R.I. 447, 53 A. 320, 60 L.R.A. 122, and note, 96 Am. St. Rep. 749. Counsel discuss refused charges, but without further citation of authority.
Harry T. Smith Caffey, of Mobile, for appellee.
Count 4 was sufficient. 123 Ala. 233, 26 So. 349; 83 Ala. 376, 3 So. 902; 155 Ala. 329, 46 So. 457, 130 Am. St. Rep. 29; 183 Ala. 182, 62 So. 500; 151 Ala. 327, 43 So. 841; 196 Ala. 107, 72 So. 35; 179 Ala. 372, 60 So. 304. Having employed the plaintiff to perform duties requiring him to go upon the pile driver, defendant could not place the plaintiff in the wrong by telling him not to go thereon. 141 Ala. 258, 37 So. 395; 121 Ala. 221, 25 So. 609; 171 Ala. 223, 55 So. 93; 111 Ala. 288, 19 So. 1001; 159 Ala. 192, 49 So. 299; 162 Ala. 618, 50 So. 289; 164 Ala. 122, 51 So. 424. Counsel discuss assignments of error relative to evidence, but without citation of authority. There was no error in the oral charge of the court. 166 Ala. 219, 52 So. 351; 102 U.S. 276, 26 L.Ed. 152; 144 Ala. 175, 39 So. 1017; 148 Ala. 147, 41 So. 988; 187 Ala. 562, 65 So. 939; 179 Ala. 372, 60 So. 304. Charges are discussed, but without further citation of authority.
The third and fourth counts of the complaint were not rendered subject to demurrer by the averment that, "by the terms of the contract" between the Chickasaw Shipbuilding Company and the defendant, the plaintiff, as representative of the shipbuilding company, had the right to be on the pile driver at the time he was injured. In pleading a contract it is permissible to state its legal effect. Davis v. Campbell, 3 Stew. 319; Pharr v. Bachelor, 3 Ala. 237; 2 Mayf. Dig. p. 808, par. 849.
These averments, made as matters of inducement, relieved the plaintiff of the imputation that he was a wrongdoer or trespasser when he received the injuries, and charged the defendant with the duty of exercising reasonable care not to inflict injuries upon him; and a specific averment, pointing out the negligent act proximately causing injury, was not necessary — a general averment to this end is all that is required. Leach v. Bush, 57 Ala. 145; M. O. R. R. Co. v. George, 94 Ala. 199, 10 So. 145; L. N. R. R. Co. v. Hawkins, 92 Ala. 241, 9 So. 271; Laughran v. Brewer, 113 Ala. 509, 21 So. 415; L. N. R. R. Co. v. Jones, 130 Ala. 456, 30 So. 586; L. N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; West. Ry. of Ala. v. Madison, 16 Ala. App. 588, 80 So. 162; Armstrong v. Montgomery Street Ry., 123 Ala. 233, 26 So. 349.
These counts, however, were demurrable for a lack of averment, showing what agency or instrumentality inflicted the injury. Sloss-Sheffield Steel Iron Co. v. Smith, 166 Ala. 437, 52 So. 38. But this was not assigned as one of the grounds of demurrer, and they are not subject to the grounds assigned. Code 1907, § 5340; Wright v. McCullough, 16 Ala. App. 575, 80 So. 149; Alabama Power Co. v. Holmes, 16 Ala. App. 633, 80 So. 736.
In view of the averments of the third and fourth counts, heretofore referred to, the instructions of plaintiff's superior, the violation of which is made the subject of plea 4, were clearly inconsistent with the plaintiff's right and his duty to his employer. Moreover, it does not appear from the averments of the plea that the alleged superior had the authority to give such instructions, or that the plaintiff was under any duty to obey them. Neither is it averred that the violation of such instructions violated any right of the defendant, or in any way increased the hazard of plaintiff's employment; and for these reasons the demurrers were properly sustained to this plea. Mobile, Jackson Kansas City R. R. Co. v. Bromberg, Adm'r, 141 Ala. 258, 37 So. 395; L. N. R. R. Co. v. Brown, Adm'r, 121 Ala. 221, 25 So. 609.
The case was submitted to the jury on the third, fourth, and eighth counts of the complaint. The eighth count contains the following averments:
"And plaintiff avers that in order to keep itself informed the Chickasaw Shipbuilding Company employed a pile foreman, whose duty it was to ascertain and report to it the information necessary, and the plaintiff was one of said pile foremen, and as such required to ascertain and report said information, which required his presence, from time to time, upon said pile driver; and the plaintiff avers that the different pile foremen who were so employed had been in the habit of going upon said pile driver in the performance of their duties with the knowledge and acquiescence of the defendant, and that, while the plaintiff was so upon the pile driver of which he was in charge in accordance with said custom and in the discharge of his duties, the said pile driver capsized by reason of the negligence of the defendant, or one of its servants, while acting within the scope of his duties as such servant, and inflicted upon the plaintiff the injuries" complained of.
The plaintiff offered evidence in support of these averments, tending to show that it was necessary for the "inspectors or pile foremen" of the shipbuilding company, in the discharge of their duties, to go upon the the pile driver while it was being operated, and that it was customary for them to do so, and that no objection to this course of conduct was made by the persons in charge of the work of operating the machine.
The defendant had the right to adduce countervailing evidence on these questions, and Simmons, the defendant's foreman in charge of the pile driver that capsized and inflicted upon the plaintiff the injuries for which he sues, was allowed to testify:
"I gave the plaintiff instructions not to go on that driver. I ordered him off the machine. He was on the machine when I ordered him off. * * * None of the other pile foremen have to go on the machine to perform their duties. They did not have a habit of getting on the machine to perform their duties. All of the duties of the pile inspectors could be as well performed on the ground as on the machine."
However, the court did not err in sustaining the plaintiff's objection to the question, "Please state whether or not any of the employés of Doullut Williams ever instructed you not to go upon the pile driver, or any pile driver, of the Doullut Williams Company while it was in operation," propounded to the witness Dowdell. The evidence shows that the defendant had in its employ coal passers, water carriers, and other common laborers, who, so far as appears here, had no authority over the work or over the employés of the shipbuilding company; and an affirmative answer to this question for these reasons might have been wholly immaterial to the issues in the case. Such instructions to be material must have emanated at least from one in authority in connection with the work in hand, and must have been given prior to the time of the plaintiff's injury. McCutchen v. Loggins, 109 Ala. 457, 19 So. 810.
For the same reason the court properly sustained the plaintiff's objection to the following question:
"Will you please state whether or not they told these foremen of the Chickasaw Shipbuilding Company, or did Mr. Simmons, in the employ of the Chickasaw Shipbuilding Company, tell them not to go on the pile driver?"
Moreover, there is no proof that Simmons was in the employ of the shipbuilding company, but, to the contrary, the proof shows that he was an employé of the defendant. The testimony of the witness Shirley shows that he continued in the employ of the shipbuilding company after the plaintiff was injured, and the question propounded to him with reference to the instructions given by Simmons was not limited to instructions given anterior to plaintiff's injury. McCutchen v. Loggins, 109 Ala. 457, 19 So. 810.
Under the rule stated in B. R., L. P. Co. v. Friedman, 187 Ala. 562, 65 So. 939, and reaffirmed in Ex parte Cowart, 201 Ala. 55, 77 So. 349, the exceptions to the oral charge present nothing for review.
Mrs. Sarah Hoffman, the mother of the plaintiff and the next friend by whom he sues, testified as follows:
"I am the mother of this boy, the plaintiff in this case. He was born December 7, 1899. He was 19 years old last December. His father is living. The father has never supported the boy. I have supported him since his birth. His father does not contribute to his support. * * * He gave me every cent that he earned. It came to me as his mother. He consulted me about the employment he engaged in — he never went into anything without consulting me — and he did not get my consent before he went to work in this Chickasaw business. I thought this work was not suitable for him. I did not sign any paper for that company. I did not sign any papers when he went to work for anybody else. I just expressed my judgment, that I did not think the work at Chickasaw was suitable for him. He worked there because the wage was better, and I got every cent of the money while he was working there."
While this witness in answer to the question, "Is he now dependent on his own resources for a livelihood?" stated, "He is dependent on his resources;" and the plaintiff also testified, "I am dependent on my own exertion for a living," these latter statements clearly relate to the time of the trial, and not to the time of and prior to the injury. There is no evidence in this record showing, or tending to show, that at the time of the alleged injury the plaintiff had been emancipated, and was dependent upon his labor for a livelihood. The court therefore erred in refusing charges 35 and 36. Durden v. Barnett, 7 Ala. 169; Tilley v. Harrison, 91 Ala. 295, 8 So. 802; B. R., L. P. Co. v. Baker, 161 Ala. 135, 49 So. 755, 135 Am. St. Rep. 118, 18 Ann. Cas. 477; McNamara v. Logan, 100 Ala. 187, 14 So. 175; Woodward Iron Co. v. Cook, 124 Ala. 349, 27 So. 455; Huntsville Knitting Co. v. Butner, 200 Ala. 288, 76 So. 54; Yost v. Grand Trunk R. Co., 163 Mich. 564, 128 N.W. 784, 31 L.R.A. (N.S.) 519, and note, Ann. Cas. 1912A, 988.
The plaintiff as an employé of the contractee, the Chickasaw Shipbuilding Company, was, at the time of receiving the injuries, rightfully on the premises of his master engaged with the defendant, an independent contractor of the shipbuilding company, in the prosecution of the same work, driving piles for the shipbuilding company; and the law imposed on the defendant the duty of using ordinary care, or, as it is sometimes expressed, the reasonable care of an ordinarily prudent person, to avoid inflicting on plaintiff personal injury. Miller v. Moran Bros. Co., 39 Wn. 631, 81 P. 1089, 1 L.R.A. (N.S.) 283, 109 Am. St. Rep. 917; 14 R. C. L. p. 105, par. 41; note 76 Am. St. Rep. 427.
Therefore, the inquiry as to whether or not the plaintiff had the right, or it was necessary for him, in doing his work, to go upon the pile driver, is related, it would seem, rather to the defense of contributory negligence than to the liability of the defendant vel non for injuries resulting from its negligence or the negligence of its servants. But in this case the plaintiff, by the averments of each of the counts of the complaint under which the case was submitted to the jury, assumed the burden of showing that the plaintiff at the time of his injury was on the pile driver in the discharge of his duties; and there is some evidence tending to show that plaintiff was on the pile driver talking with some of the employés of the defendant about matters foreign to his duties and employment. On this state of the pleadings, the court erred in refusing charges 12 and 26, requested by the defendant.
Charge 30, refused to the defendant, was substantially covered by charge 33, given at its instance.
We think the evidence clearly excludes the idea that the injury was the result of unavoidable accident; and, while charge 31 asserted a correct abstract proposition, its refusal was not error in this case. There was evidence sufficient to carry the case to the jury under counts 3, 4, and 8, and the affirmative charge as to each of these counts was properly refused.
For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.