Woodward Iron Co. v. Marbut

• Decision Date: 15 May 1913
• Citation: 62 So. 804,183 Ala. 310
• Parties: WOODWARD IRON CO. v. MARBUT.
• Court: Alabama Supreme Court

62 So. 804

183 Ala. 310

WOODWARD IRON CO. v. MARBUT.

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.

SAYRE J.

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 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 conserving principles of procedure are assured. 2 Hughes on Prop. 474. And, to come nearer to the needs of the instant case, certainty in some degree is required to give adversary parties reasonable notice of what they must be prepared to meet, and to speed the disposition of causes under their merits. T.C.I. Co. v. Smith, 171 Ala. 251, 55 So. 170.

By the adjudicated cases it appears that breaches of the duty of superintendence may take many various forms. Superintendence may cover the entire field of the master's business. There may be negligence on the part of a superintendent in the adoption of an improper method of doing the work in hand; the giving of improper directions with respect to particular details of the work; failing to furnish proper appliances; employing incompetent servants; allowing abnormally dangerous conditions to exist in the place of work; failing to give instructions under circumstances which indicate the propriety of doing so; failing to warn a servant of abnormal danger; or violating rules promulgated by the master. See 2 Labatt Mas. & Ser. § 687, where many illustrative cases are collected. Under the complaint in this case plaintiff might have proved any or all of the above-mentioned varieties of negligence. But their enumeration demonstrates the reason and necessity of the rule which requires the statement of facts, whereon issues can be joined, understood, and tried, in connection with the conclusion alleged.

In all the complaints under the statute which have passed muster in this court, so far as we are informed, not excepting Bear Creek Mill Co. v. Parker, supra, there have appeared averments designed and calculated to give the defendant at least an inkling of the facts constituting the particular character of negligence the plaintiff would undertake to prove at the trial. Thus in A.G.S.R.R. Co. v. Davis, 119 Ala. 572, 24 So. 862, much stressed by appellee, a count under the fifth subdivision of the act, which charged plaintiff's injuries to "the negligence of an engineer of defendant who then and there had charge or control of an engine of defendant" was held sufficient. But that, we take it, was because the averment informed the common understanding that the negligence occurred in the manual operation of the engine, and seems fair enough. So of other counts in the same case, framed under the first subdivision of the act, in which negligence was predicated upon the fact that there was "a defect in the track," though some members of the court were inclined to think too much indefiniteness and uncertainty characterized some of the counts.

In Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445, a count under the first subdivision, averring that "the said railway from which the said engine was derailed at or near the point of derailment was defective," was held good, the court saying that the term "railway" was used in the pleading merely to designate that from which the engine was derailed, and must in such use be construed as synonymous with "track." But it has been held all along that counts under that subdivision of the statute must specify the defect in defendant's ways, works, machinery, or plant of which they complain. Whatley v. Zenida Coal Co., 122 Ala. 118, 26 So. 124; Whitmore v. Ala. Consol. Co., 164 Ala. 125, 51 So. 397, 137 Am.St.Rep. 31; T.C. I. Co. v. Smith, supra.

In Southern Car Co. v. Bartlett, 137 Ala. 237, 34 So. 20, relied upon by appellee, the count under the second subdivision of the statute stated precisely what the superintendent had done, and wherein his negligence consisted, while those counts which were sustained under the third subdivision alleged the general tenor of the order given.

A considerable number of cases seem to fall indifferently under the second or third subdivisions of section 3910, providing respectively, for cases of negligence in the exercise of superintendence and cases in which the injured servant conforms to the orders or directions of another to whose orders or directions he is bound to conform. The two subdivisions are closely related, and decisions under one furnish a close analogy for cases under the other. In Reiter-Connolly Co. v. Hamlin, 144 Ala. 192, 40 So. 280, where a count under the third subdivision, alleging...