Allen v. Alger-Sullivan Lumber Co., 3 Div. 407

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, J.
Citation204 Ala. 92,85 So. 278
Decision Date22 January 1920
Docket Number3 Div. 407
PartiesALLEN v. ALGER-SULLIVAN LUMBER CO.

85 So. 278

204 Ala. 92

ALLEN
v.
ALGER-SULLIVAN LUMBER CO.

3 Div. 407

Supreme Court of Alabama

January 22, 1920


Rehearing Denied Feb. 12, 1920

Appeal from Circuit Court, Conecuh County; A.E. Gamble, Judge.

Action by Hays Allen against the Alger-Sullivan Lumber Company for damages for death of his minor son in employment. From judgment for defendant, plaintiff appeals. Reversed and remanded. [85 So. 279]

Hybart, Hare & Ratcliffe, of Monroeville, for appellant.

Hamilton & Page, of Evergreen, for appellee.

GARDNER, J.

Count 2 as amended rested for recovery upon the employment by the defendant of the plaintiff's minor son to engage in dangerous work, without plaintiff's knowledge or consent, and his injury and death as a consequence thereof.

This count did not rely upon the doctrine of negligence, and the plea of contributory negligence was improperly allowed as a defense thereto. Marbury Lbr. Co. v. Westbrook, 121 Ala. 179, 25 So. 914; Huntsville Knitting Mills v. Butner, 194 Ala. 317, 69 So. 960. But it is insisted that, if demurrer to this plea was improperly sustained, it was without injury for the reason that the affirmative charge was due the defendant on account of the failure of proof on the part of the plaintiff that the boy was employed or engaged in a dangerous work.

The boy was between 14 and 15 years of age, and was engaged to cut wood back of the skidder, which work, as well as his surroundings, so far as this record shows, were entirely safe. Nor does it appear that he was injured on account of any part of defendant's work being attractive, nor that he was enticed to the place of his injury, but merely left his place of employment and went to where they were cutting down trees, which was several hundred feet away, in an effort to engage some of the hands in a game.

We are therefore persuaded that, under these circumstances, the defendant was due the affirmative charge upon count 2 as amended. Tenn. C.I. & R.R. Co. v. Crotwell, 156 Ala. 304, 47 So. 64. There is nothing in Jefferson Fert. Co. v. Burns, 10 Ala.App. 301, 64 So. 667, upon which appellant relies, at all at variance with this conclusion.

However, we are of the opinion that the cause must be reversed for the ruling of the court in sustaining the demurrer to counts one and three as amended. These counts presented an entirely different issue from that set up in the second count, as they rested for recovery upon the negligence of the defendant...

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6 practice notes
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...58 So. 392, the damages are punitive (Gulf States Steel Co. v. Justice, 204 Ala. 577, 583, 87 So. 211; Allen v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; L. & N. v. Cross, 205 Ala. 626, 629, 88 So. 908; L. & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., ......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...R. Co. v. Bogue, 177 Ala. 349, 58 So. 392; Gulf States Steel Co. v. Justice, 204 Ala. 577, 87 So. 211; Allen v. Alger-Sullivan Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Colli......
  • Vaughn v. Dwight Mfg. Co., 7 Div. 212.
    • United States
    • Supreme Court of Alabama
    • October 27, 1921
    ...233, 249, 26 So. 349; Wheeler v. Standard Steel Co., supra; Garrett v. L. & N., 196 Ala. 52, 71 So. 685; Allen v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; Id., 205 Ala. 352, 87 So. 442; Woodward Iron Co. v. Gamble, 203 Ala. 20, 81 So. 810; Briggs v. B. R. L. & P. Co., 188 Ala. 262,......
  • Allen v. Alger-Sullivan Lumber Co., 3 Div. 453
    • United States
    • Supreme Court of Alabama
    • January 20, 1921
    ...negligence was properly allowed as answer to counts 1, as amended, and 3, and not to count 2. Allen v. Alger-Sullivan Lbr. Co., 85 So. 278. It is unnecessary to discuss assignments of error not insisted upon in brief or argument of counsel. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 15......
  • Request a trial to view additional results
6 cases
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...58 So. 392, the damages are punitive (Gulf States Steel Co. v. Justice, 204 Ala. 577, 583, 87 So. 211; Allen v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; L. & N. v. Cross, 205 Ala. 626, 629, 88 So. 908; L. & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., ......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...R. Co. v. Bogue, 177 Ala. 349, 58 So. 392; Gulf States Steel Co. v. Justice, 204 Ala. 577, 87 So. 211; Allen v. Alger-Sullivan Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Colli......
  • Vaughn v. Dwight Mfg. Co., 7 Div. 212.
    • United States
    • Supreme Court of Alabama
    • October 27, 1921
    ...233, 249, 26 So. 349; Wheeler v. Standard Steel Co., supra; Garrett v. L. & N., 196 Ala. 52, 71 So. 685; Allen v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; Id., 205 Ala. 352, 87 So. 442; Woodward Iron Co. v. Gamble, 203 Ala. 20, 81 So. 810; Briggs v. B. R. L. & P. Co., 188 Ala. 262,......
  • Allen v. Alger-Sullivan Lumber Co., 3 Div. 453
    • United States
    • Supreme Court of Alabama
    • January 20, 1921
    ...negligence was properly allowed as answer to counts 1, as amended, and 3, and not to count 2. Allen v. Alger-Sullivan Lbr. Co., 85 So. 278. It is unnecessary to discuss assignments of error not insisted upon in brief or argument of counsel. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 15......
  • Request a trial to view additional results

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