62 So. 804 (Ala. 1913), Woodward Iron Co. v. Marbut

Citation:62 So. 804, 183 Ala. 310
Opinion Judge:SAYRE, J.
Attorney:Cabaniss & Bowie, of Birmingham, for appellant. Stallings & Drennen, of Birmingham, for appellee.
Judge Panel:McClellan, J., dissenting. ANDERSON, MAYFIELD, SOMERVILLE, and DE GRAFFENRIED, JJ., concur. McCLELLAN, J., dissents as to the ruling on count 4. His views are expressed in Cahaba Coal Co. v. Elliott, 62 So. 808. DOWDELL, C.J., not sitting.
Case Date:May 15, 1913
Court:Supreme Court of Alabama

Page 804

62 So. 804 (Ala. 1913)

183 Ala. 310




Supreme Court of Alabama

May 15, 1913

Rehearing Denied June 19, 1913

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by W.A. Marbut against the Woodward Iron Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

McClellan, J., dissenting.

Cabaniss & Bowie, of Birmingham, for appellant.

Stallings & Drennen, of Birmingham, for appellee.


This suit was brought under subsection 2 of the Employers' Liability Act (section 3910 of the Code). Count 4 alleged the relation between the parties out of which a duty arose, the nature and extent of plaintiff's injury, and that it was caused by "a certain piece or particle of steel that flew with great force and violence from a cleaver when struck by a sledge hammer at the shops of defendant." It then concludes: "Plaintiff avers that his said injury and damage were caused by reason and as a proximate consequence of the negligence of a person in the service and employment of defendant, and intrusted by it with superintendence whilst in the exercise of such superintendence, to wit: Tom Cosper."

In our most recent case of the sort we held in respect to a similar count that, though it followed the language of the statute, it was subject to demurrer, because it failed to point out, even in general terms, any act of negligence on the part of the alleged superintendent with respect to his duty while so engaged. Maddox v. Chilton Warehouse Co., 171 Ala. 216, 55 So. 93.

In Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700, the fifth count of the complaint there under consideration, after alleging preliminary matter about which there was no question, showed plaintiff's injuries, and that they resulted from plaintiff being caught between two cars of the defendant. The averment which needs to be noticed in this connection was as follows: "And plaintiff avers that his said injuries were caused by reason of the negligence of Bill Simmons, who was then and there in the service or employment of the defendant, and was then and there intrusted with the superintendence of the train hands and loaders

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on defendant's said cars and the coupling thereof, and that said injury occurred while the said Bill Simmons was in the exercise of such superintendence." It was held that the count was not demurrable for failing to aver the facts relied on to constitute negligence. It is not impossible to find sensible differences between the question there presented and the one at hand. There the general, though loosely stated, effect of the averment was that defendant's superintendent was party to and negligent about the very act of coupling the cars between which plaintiff was caught and hurt, whereas here the particular negligence is not pointed out, and defendant's superintendent may have been connected with the manual act charged in any of the manifold ways in which the master or his superintendent may have care, oversight, or superintendence of the master's business, and the demurrer in this case drew attention to this consideration. These remarks apply to the case of Creola Lumber Co. v. Mills, 149 Ala. 474, 42 So. 1019. But without dwelling on this point of difference between those cases and this, we will see to what result general principles of pleading and the analogy of other adjudications lead.

The rule of this court has been that a complaint under the Employers' Liability Act should, in respect of certainty, conform to those rules which under our system apply to pleadings generally. Those rules permit the averment of conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined and tried. L. & N.R.R. Co. v. Jones, 130 Ala. 470, 30 So. 586, citing Leach v. Bush, 57 Ala. 145, upon which have been planted all those numerous cases in which great generality in the averment of negligence has been accepted as meeting the requirements of good pleading.

Certainty to a common intent in pleading is essential to the due administration of justice, and it cannot be abolished. By certainty causes and issues are identified for the determination of jurisdiction, and thereby the protection of parties against repeated trials of the same case, the finality of elections of remedies, the comity of courts, and other...

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