Richardson v. Vaughn
Decision Date | 16 November 1922 |
Docket Number | 8 Div. 448. |
Citation | 94 So. 514,208 Ala. 442 |
Parties | RICHARDSON ET AL. v. VAUGHN. |
Court | Alabama 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.
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.
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...
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Peck v. Henderson
... ... 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 ... ...
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Lipscomb v. Paul
...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......