Richardson v. Vaughn

Decision Date16 November 1922
Docket Number8 Div. 448.
Citation94 So. 514,208 Ala. 442
PartiesRICHARDSON ET AL. v. VAUGHN.
CourtAlabama Supreme Court

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

Action of William Vaughn, by his next friend, against W. M Richardson and O. L. Chambers. From a judgment for plaintiff defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

A. A. Williams, of Florence, for appellants.

Bradshaw & Sims, of Florence, for appellee.

SOMERVILLE J.

Count 1 of the complaint is framed under subdivision 3 of the Employers' Liability Act (Code, § 3910). It is fatally defective in not alleging that Lane was negligent in ordering plaintiff to grind the meat, if indeed Lane gave such an order. So. Car & Foundry Co. v. Bartlett, 137 Ala. 234, 241, 34 So. 20; Creola Lbr. Co. v. Mills, 149 Ala. 474, 480, 42 So. 1019. The demurrer pointed out this omission, and should have been sustained.

Count 2 alleges that-

Plaintiff "was not familiar with the mechanism or working of said meat grinder, and that his injury was proximately caused by the negligence of A. D. Lane, who failed to instruct plaintiff as to the proper operation of said meat grinder, or as to the dangerous character of its mechanism. And *** that the said A. D. Lane was in the service or employment of the defendants, and that plaintiff was bound to conform, and did conform, to his orders and directions at the time the injury occurred, and that such injury resulted from his having so conformed."

We think that this count is subject to the seventh ground of demurrer, as setting up two distinct causes of action; the one, Lane's negligent failure to instruct, and the other, plaintiff's conformity to Lane's order. If the count be treated as framed under subdivision 3 of the act, it is defective in not alleging that Lane gave a negligent order; and, if it be treated as charging a negligent failure to instruct, it is defective in not alleging that the operation of the meat grinder was in fact dangerous to one who was not instructed, since otherwise the duty to instruct does not arise. Each of these defects was aptly pointed out by the demurrer.

Count 3 declares upon defendants' negligent failure to instruct plaintiff in the proper operation of the meat grinder, and alleges that plaintiff was inexperienced and uninstructed as to its mechanism and working, and "was not informed as to its dangerous character." This last allegation is not the...

To continue reading

Request your trial
3 cases
  • Peck v. Henderson
    • United States
    • Alabama Supreme Court
    • 4 October 1928
    ... ... proof and the decision of the properly presented and ... litigable issues. Will's Gould on Pleading (6th Ed.) p ... 401 et seq.; Richardson v. Vaughn, 208 Ala. 442, 94 ... The ... first count limited its averments, among other things, to the ... negligent or unskillful conduct ... ...
  • Burke v. Burke
    • United States
    • Alabama Supreme Court
    • 16 November 1922
  • Lipscomb v. Paul
    • United States
    • Alabama Supreme Court
    • 22 October 1964
    ...in Whatley v. Zenida Coal Co., 122 Ala. 118, 26 So. 124; Woodward Iron Co. v. Johnson, 150 Ala. 365, 43 So. 186; and Richardson v. Vaughn, 208 Ala. 442, 94 So. 514. We do not find in Count 1 of the instant case any averment pointing out any particular defect in defendants' ways, works, mach......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT