Alabama Fuel & Iron Co. v. Minyard

• Citation: 205 Ala. 140,88 So. 145
• Decision Date: 11 November 1920
• Docket Number: 7 Div. 64
• Court: Supreme Court of Alabama
• Parties: ALABAMA FUEL & IRON CO. v. MINYARD et al.

88 So. 145

205 Ala. 140

ALABAMA FUEL & IRON CO. v. MINYARD et al.

7 Div. 64

Supreme Court of Alabama

November 11, 1920

Rehearing Denied. Dec. 18, 1920

Appeal from Circuit Court, St. Clair County; W.J. Martin, Judge.

Action by Cora Minyard and another, as administrators of the estate of W.L. Minyard, deceased, against the Alabama Fuel & Iron Company for damages for the death of their intestate in a mine operated by the defendant. Judgments for plaintiffs, and defendant appeals. Reversed and remanded.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellant.

Mathews & Mathews, of Bessemer, and Hill, Hill, Whiting & Thomas, of Montgomery, for appellees.

THOMAS J.

This suit was by the servant against the master for personal injury caused by gas explosion in a coal mine.

The case was submitted on count 1 alleging intestate's employment by defendant and injury while in the discharge of his employment. The sufficiency of the complaint was challenged by grounds of demurrer, among which was this:

"The alleged negligence of the superintendent charged with negligence is not sufficiently set forth or described."

The sufficiency of complaints as statements of the duty of the master and of its breach by the servant, where it lay under the superintendent clause of the statute, has been a matter of frequent discussion; that is to say, the general rules of pleading being applicable thereto, some difference of opinion has existed as to a sufficient statement to show the master's duty and its breach through the negligence of a superintendent in charge and so acting for the master at the time of the injury. L. & N.R.R. Co. v. Jones, 130 Ala. 456, 460 30 So. 586; Robinson Min. Co. v. Tolbert, 132 Ala 462, 31 So. 519; Little Cahaba Coal Co. v. Gilbert, 178 Ala. 515, 59 So. 445; Sloss-Shef. S. & I. Co. v. Terry, 191 Ala. 476, 67 So. 678; T.C., I. & R.R. Co. v. Moore, 194 Ala. 134, 69 So. 540; Williamson Iron Co. v. McQueen, Adm'r, 144 Ala. 265, 270, 40 So. 306; Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 375, 48 So. 109; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280; L. & N.R.R. Co. v. Bargainier, 168 Ala. 567, 53 So. 138; Creola Lumber Co. v. Mills, 149 Ala. 474, 42 So. 1019; Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 61 So. 914.

By sections 40 and 41 of the act of April 18, 1911 (Gen.Acts, pp. 500, 515), "to regulate the mining of coal in Alabama," the duty is imposed upon "the operator or superintendent of every coal mine" to "provide" and "maintain ample means of ventilation for the circulation of air through the main entries and all other working places to an extent that will dilute, carry off and render harmless the noxious and explosive gases generated in the mine, the same to be not less than one hundred cubic feet per minute per man, and five hundred cubic feet per mule or horse" (section 40); and the ventilation shall be such as to properly conduct the air so specified and purified to all working places. It is further provided that no accumulation of explosive gas shall be allowed to exist in the worked out or abandoned parts of any coal mine in operation, and the entrance or entrances to said worked out and abandoned places shall "be properly fenced off, and cautionary notices shall be posted upon said fencing to warn persons of danger." Section 41; Segrest v. Roden Coal Co., 201 Ala. 382, 78 So. 756; Walker v. Birmingham C. & I. Co., 184 Ala. 425, 63 So. 1012. Mr. Chief Justice Anderson declared the effect of section 40 of the act of 1911: that it was the intent of the Legislature to protect the miner from the danger of noxious and explosive gases generated in the mine; that this is a nondelegable duty; and that the amount of air provided is a legislative ascertainment so that nothing short of the amount of air prescribed will accomplish the purpose of the statute. The Justice said:

"The result is the law requires the mine owner or superintendent to see that all noxious and explosive gases generated in the mine are so diluted or carried out as to render the same harmless, and that nothing less than air to the extent of 100 cubic feet per man per minute and 500 cubic feet for mule or horse will accomplish the purpose. It is true that in the opinion upon rehearing in the Walker Case, supra, we said it 'may be' that the act of 1911 would change the rule, and that the mine owner would meet the requirement when he furnished the requisite amount of air. This expression, however, was in no sense a construction of the act of 1911, which did not apply to the case under consideration, and it was not then realized that the act, instead of prescribing the amount of air, merely fixes a minimum amount."

The statement of fact of that case shows that the action was based upon the negligence of the defendant coal company in failing to provide sufficient air in the mine, and because of said failure gas was generated in said mine, became ignited, and caused an explosion which killed plaintiff's intestate. As to this, the gravamen of the complaint held sufficient by the trial court as shown by the original record in that case was:

"*** That the death of his said intestate was caused by reason of the negligence of a person in the service or employment of the defendant as master, whose name is to the plaintiff unknown, who had superintendence intrusted to him whilst in the exercise of such superintendence in this. The said person who, at the time of the death of plaintiff's said intestate, was superintendent of defendant's said mine, then and there negligently failed to provide and maintain in said mine ample means of ventilation for the circulation of air through the main entries, and all other working places in said mine, to an extent that would dilute, carry off, and render harmless the explosive gases generated in said mine, and properly conducted to all working places in said mine; and the plaintiff avers, by reason thereof, gases generated in said mine, became ignited and exploded, killing the plaintiff's said intestate."

The complaint was challenged by demurrer that there was no sufficient causal connection between the alleged negligence of said superintendent and the intestate's death. Segrest v. Roden Coal. Co., supra.

The sufficiency of complaints under the superintendence clause of the statute (section, 3910, Code) has been often considered by this court, and not without a difference of opinion among the justices of the sufficiency of averment of fact to show the extent of the superintendence. These rulings may be illustrated by complaints upheld, the gravamen of which, respectively, was:

"*** Defendant's superintendent or bank boss, to wit, L.W. Johns, negligently failed to take due and proper precautions to prevent said fire from causing said suffocation or asphyxiation and death of plaintiff's intestate."

This was in a mine explosion and other counts ascribed specific acts of negligence to said superintendent. Bessemer Land & Imp. Co. v. Campbell et al., 121 Ala. 50, 56, 57, 25 So. 793, 797 (77 Am.St.Rep. 17).

"*** That said furnace broke or gave way, and his intestate's death was caused as aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of

defendant *** whilst in the exercise of such superintendence, viz. Daniel R. Monroe, negligently caused or allowed said furnace to break or give way and said matter to issue therefrom as aforesaid, and thereby negligently caused intestate's death as aforesaid." Williamson Iron Co. v. McQueen, Adm'r, 144 Ala. 265, 271, 40 So. 306, 308.

"*** The negligence of Bill Simmons, who 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 [cataloging his injuries], and that such injuries were sustained while plaintiff was endeavoring to couple two of said cars under the said superintendence of the said Bill Simmons." Bear Creek Mill Co. v. Parker, 134 Ala. 293, 301, 32 So. 700, 702.

"*** Whilst in the exercise of such superintendence, viz. defendant's section boss, to wit, one Smith, negligently caused or allowed the use of means or appliances in or about attempting to get said car upon said rails, which were likely to cause said car to fall as aforesaid" (count 3), and "whilst in the exercise of such superintendence, viz. defendant's conductor, to wit, one Lee, negligently caused or allowed the attempt to get said car upon said rails without proper appliances." L. & N.R.R. Co. v. Jones, Adm'r, 130 Ala. 456, 460, 470, 30 So. 586, 587.

"*** Whilst in the exercise of such superintendence, to wit, one Frank Rich, in the exercise of such superintendence, negligently caused or allowed said lumber or timber to fall from said car or buggy." Count 2. "In the exercise of such superintendence, to wit, one Frank Rich, in the exercise of such superintendence, negligently caused or allowed said lumber or timber buggy to be improperly or dangerously loaded with said lumber or timber, so that said lumber fell and injured plaintiff as aforesaid." Count 3. Western Steel Car & Fdy. Co. v. Cunningham, 158 Ala. 369, 372, 48 So. 109, 111.

The demurrers to these last two counts were grounded on generality of averments as to the superintendence intrusted to the person named.

In Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala 178, 180, 49 So. 301, 302, the count upheld ascribed the injury to the negligence of C.M. Parker, whilst he was in the exercise of superintendence, in that he "negligently caused or allowed said part of said roof or top to fall upon or against plaintiff." In Republic Iron & Steel Co. v....