Alabama Great Southern R. Co. v. Vail

• Decision Date: 23 December 1904
• Citation: 142 Ala. 134,38 So. 124
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. VAIL.
• Court: Alabama Supreme Court

38 So. 124

142 Ala. 134

ALABAMA GREAT SOUTHERN R. CO. v. VAIL.

Supreme Court of Alabama

December 23, 1904

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Squire Thomas Vail against the Alabama Great Southern Railroad Company. From a judgment in favor of plaintiff defendant appeals. Reversed.

This is an action to recover damages for personal injuries sustained by plaintiff, who was an employé of the defendant corporation. The main facts in the case are set out in the opinion. Demurrers by the defendant were sustained to all of the counts of the complaint except the first, which was as follows: "(1) The plaintiff claims of the defendant the sum of five thousand dollars as damages for that heretofore on, to wit, the 26th day of December, 1901, plaintiff was a servant of the defendant in the city of Birmingham, Alabama and in the course of his employment as such servant it became and was his duty to assist in unloading long heavy timber from a certain car then at or near defendant's roundhouse in said city, and plaintiff avers that the defendant negligently failed to provide a sufficient number of men to unload said timbers with reasonable safety, and that by reason of said failure one of said timbers fell upon plaintiff's feet, and mashed, bruised, and wounded them so that he suffered great physical pain and mental anguish and his feet were permanently injured, and he was put to great expense for surgical and medical attendance and medicines in and about attempting to cure said wounds; all to his damage in the sum aforesaid, wherefore he sues." The defendant demurred to this count on the following grounds: "(1) For that the said count states no cause of action against this defendant, in that it fails to allege that it was the duty of the defendant to provide any more men than it did provide for the unloading of said car. (2) For that said count fails to allege or show what number of men defendant furnished for the purpose of unloading said car, and what number of men it was necessary to furnish to enable the plaintiff to unload said car without being injured." The court overruled this demurrer, and the defendant excepted. Issue was joined on the plea of general issue and contributory negligence. On the examination of plaintiff as a witness he was asked by his counsel whether Mr. Miller, the foreman, at any time, in the hearing of plaintiff, said anything to James Green, one of the workmen, about the way in which he (Green) attended to his work. The defendant objected to this question. The court overruled the objection, and the defendant excepted. The plaintiff's counsel then asked witness what Mr. Miller said. The court overruled the objection of the defendant to this question, and defendant excepted. Witness answered that Mr. Miller told Green "if he did not get a move on him, he would have to lay him off." The defendant excepted to the action of the court in overruling the motion of defendant to rule out this answer of plaintiff. These rulings constitute the basis of the second, third, and fourth assignments of error. The plaintiff excepted to the ruling of the court in refusing to give the general charge for defendant and special charge No. 7, set out in the opinion. There were verdict and judgment for plaintiff, assessing his damages at $200.

A. G. & E. D. Smith, for appellant.

SIMPSON J.

This was a suit by appellee against appellant for damages from a personal injury received by appellee, while engaged as an employé of appellant in unloading heavy timbers from a car. All of the counts of the complaint except the first (which is set out in the statement of the case), were eliminated. Demurrers were filed to this count, which were overruled, and issue was then joined on pleas of the general issue and contributory negligence. The complaint is clearly based on the common-law liability of the master, and not under the statute. The evidence shows that Robert Miller was the foreman, having 35 or 40 men under him; that he hired and discharged men; that he ordered the men to get in the car and unload; that he left them about an hour before the accident leaving the three men plaintiff, Peach, and Green on the car, and three on the ground, all engaged in unloading the car. The plaintiff states that there were eight men engaged in unloading the car first, and that Miller took five of them away, leaving only three unloading; but he immediately qualified that by stating that three were on the car and three on the ground, all assisting in unloading the car. Plaintiff states that they had handled two large pieces of timber, and when they were unloading the third large one Green had the crowbar resting on the top of the side of the car, and while it was in that position the bar, on which the timber was resting, slipped out, and the timber fell on plaintiff's feet; that while Miller was there Green did not appear to give proper attention to his work; that he did not seem to care whether he worked or not. He states that Green could have held the bar horizontally, or at a slight angle above horizontal, and in that way would have kept it from slipping. He also states that when they had eight men they could just raise the timber up and throw it out by main strength, but that three men could not throw it out that way, but had to lift one end at a time, and place it on the skids, and have one to hold that end with the crowbar while the others moved the other end. It is claimed by plaintiff that Miller was the "vice principal" in this case, and not the fellow servant of the plaintiff, that he was negligent, and therefore the master was responsible. The cases involving the question as to whether an employé is a vice principal, so as to stand in the place of the master, and be his "alter ego," so that the master is responsible for his negligence, are divisible into two classes, to wit, one in which the representative character is regarded as determinable by the rank which he holds in the master's service, and the other in which his rank is held to be immaterial, and the master is held to be responsible according as the employé was or was not deputed to perform those strictly personal duties of the master, variously denominated "absolute," "nondelegable," "nonassignable," or "nontransferable." 1 Labatt on Master & Servant, § 150, p. 313. From an early period in England one current of authorities held that a master who transferred all of his business to a general manager constituted such general manager his alter ego, and was responsible for his acts of negligence to his servants. But that doctrine was finally repudiated, and the English cases now, following the leading case of Wilson v. Merry, L. R. 1st H. L. Sc. App. Cas. 326, 19 L. T. N. S. 30, hold that the rule that the servant assumes all the risks arising from the negligence of other servants is not subject to any exceptions, the reasoning being that the master cannot be held liable unless he himself has been negligent, that he has not agreed to do the work personally, and, at all events, the servant can choose whether he will serve the master who does all of his own work or the one who employs others to attend to it. 2 Labatt on Master and Servant, §§ 525, 529, pp. 1484, 1501, and notes. But in the United States the great weight of authority favors a more liberal policy towards the employé, and...