Alabama Steel & Wire Co. v. Clements

• Decision Date: 20 April 1906
• Citation: 40 So. 971,146 Ala. 259
• Parties: ALABAMA STEEL & WIRE CO. v. CLEMENTS.
• Court: Alabama Supreme Court

40 So. 971

146 Ala. 259

ALABAMA STEEL & WIRE CO. v. CLEMENTS.

Supreme Court of Alabama

April 20, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Tom E. Clements against the Alabama Steel & Wire Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This cause was tried on counts B, C, and D. Count B is in the following language: "The plaintiff claims of the defendant $30,000 damages, for that, on the 21st day of July 1903, plaintiff was by invitation of the defendant, its agent or servant, who had authority in the premises at Virginia Mines in Jefferson county, and while at Virginia Mines, after nightfall and while it was dark, defendant having negligently allowed a large hole or open space to be and remain on a tipple at said mine where plaintiff was invited to go, and through which hole plaintiff fell a distance of 20 feet dislocating his hip and injuring him in his leg, making him sick and sore from said injuries, and making him unable to earn money. Plaintiff avers that his said injuries were proximately caused by reason of the wrongful act or negligence of the defendant, its servant, or agent, who had authority, in this, to wit: That defendant's agents or servants, who had superintendence intrusted to them, allowed said hole or opening on the tipple, where the plaintiff was invited to be and to go, to be and remain open and dangerous for the plaintiff in the night-time, without proper signals or light to warn plaintiff of the danger in said place; and plaintiff avers that the said negligence of the defendant's servants or agents was the proximate cause of his injuries as aforesaid, from which he sustained great physical and mental pain, to his great damage as aforesaid." Count C: "Plaintiff claims of the defendant corporation $30,000 as damages, for that on, to wit, July 21, 1903, plaintiff was the employé or servant of defendant corporation, and while acting in the discharge of his duties as such employé or servant, and by reason of and as a proximate consequence of the negligence of a person in the service or employment of the defendant, who directed plaintiff to have no light with him, and to whose orders or directions the plaintiff was at the time bound to conform and did conform, and as a proximate result of his having so conformed plaintiff walked or fell through an opening or hole in the top house at Virginia Mines, where defendant had him employed at a place of business operated by defendant through its agents or servants. And plaintiff avers that by and from said fall his hip, arm, and side were seriously injured and bruised, and that said injuries are permanent in their nature, and he has and will suffer great mental and physical pain therefrom, and lose money and time." Count D "Plaintiff claims of the defendant the sum of $30,000 as damages, for that on, to wit, July 21, 1903, plaintiff was willfully, wantonly, or intentionally injured by the defendant's agents and servants (who had authority and superintendence in the premises, but whose names are unknown to this plaintiff), while in the discharge of their duties in that they or one of them, knowing the dangers of this plaintiff, directed plaintiff to go upon the top house, and well knowing that a hole or opening was in the floor (unknown to plaintiff), and that it was dark, and that plaintiff would probably or likely fall in said hole or opening, a distance of 30 feet, and his hip was thereby dislocated, his body bruised and made sore, and plaintiff caused to suffer grievous physical and mental pain; hence this suit."

The defendant assigned to each of said counts separately and severally the following grounds of demurrer: "(1) It does not appear from said count in what respect defendant's agents or servants were negligent or in what respect defendant was negligent. (2) It does not appear from said count that defendant owed any duty to plaintiff to keep its premises in any other condition or state than they were when plaintiff was injured. (3) It appears that the negligence complained of was that of a fellow servant of plaintiff, and avers no facts showing that defendant is liable therefor to plaintiff" And to count B of said complaint he assigned the following grounds: "(1) Said count is unintelligible and incoherent. (2) Its averments are inconsistent and repugnant. (3) It joins a cause of action under the common law and under the employer's liability act. (4) It does not appear that the defendant's agent whose negligence is complained of had knowledge or notice of the fact that plaintiff would go, or would be likely to go upon said tipple. (5) It does not appear that plaintiff was invited to go upon said tipple. (6) It does not appear that defendant invited plaintiff to go upon said tipple in the night. (7) It is not made to appear but that the hole or opening through which plaintiff fell was obviously dangerous and apparent. (8) It does not appear how defendant was guilty of negligence, or that there was any negligence resulting in the injuries complained of chargeable to the defendant, save by way of recital or conclusion. (9) The averments of negligence are mere conclusions of the pleader. (10) It does not appear that the agents or servants of defendant were acting within the scope of their authority in inviting plaintiff to go upon said property. (11) It does not appear in what the alleged wrongful act or negligence consisted." To count C the defendant filed the following special and additional grounds of demurrer to those hereinbefore assigned: "(1) Said count does not show that plaintiff was directed to go on said top house without a light. (2) It does not show that at the time plaintiff was injured he was complying with the order of any person to whose order he was bound to conform and did conform and was injured as the proximate result of having so conformed. (3) Said count does not show any negligent order or direction given to plaintiff by any person to whose order or direction plaintiff was bound to conform which proximately contributed to the injury complained of." To count D defendant assigned the following special and additional grounds of demurrer: "(1) It is not shown that the servants or agents who directed plaintiff to go on said top house were at that time servants or agents for whose act the defendant is responsible. (2) It is not averred that the names of the person to whose negligence the injury is ascribed are unknown to plaintiff, and their names are not given. (3) It is not averred that the person or persons to whose action the alleged wanton injury was ascribed were intrusted with superintendence over plaintiff, or that he was negligent in the exercise of such superintendence. (4) It...