Allen v. Alger-Sullivan Lumber Co.

• Decision Date: 22 January 1920
• Docket Number: 3 Div. 407
• Citation: 204 Ala. 92,85 So. 278
• Parties: ALLEN v. ALGER-SULLIVAN LUMBER CO.
• Court: Alabama Supreme Court

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.

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 company, and the suit by the father was authorized under section 2485 of the Code of 1907. These counts make no attempt to state any cause of...