Allen v. Alger-Sullivan Lumber Co.

• Decision Date: 20 January 1921
• Docket Number: 3 Div. 453
• Parties: ALLEN v. ALGER-SULLIVAN LUMBER CO.
• Court: Alabama Supreme Court

87 So. 442

205 Ala. 352

ALLEN v. ALGER-SULLIVAN LUMBER CO.

3 Div. 453

Supreme Court of Alabama

January 20, 1921

Rehearing Denied Feb. 12, 1921

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Action by Hays Allen against the Alger-Sullivan Lumber Company for damages for the death of plaintiff's minor son Rupert Allen. Judgment for defendant, and plaintiff appeals. Affirmed.

Hybart & Hare, of Monroeville, for appellant.

Hamilton & Page, of Evergreen, for appellee.

THOMAS J.

The suit was by father for death of minor son. Counts 1, as amended, and 3 were under the Homicide Act (Code, § 2485). Count 2, as amended, was rested upon employment by defendant of plaintiff's minor son to engage in dangerous work without plaintiff's consent, and his injury and death as a proximate consequence thereof.

Plea 2 of contributory 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. 158; Lindsey v. Steenson, 201 Ala. 589, 79 So. 11; Bowdoin v. Ala. Chem. Co., 201 Ala. 582, 79 So. 4; Adams Hdw. Co. v. Wimbish, 201 Ala. 547, 78 So. 901; Ala. Power Co. v. Hamilton, 201 Ala. 62, 69, 77 So. 356.

The first insistence in argument for error is that the court invaded the province of the jury in stating in the oral charge that:

"I charged them that if it was brought home to his knowledge [Hays Allen] that this man [the minor son] was working for the Alger-Sullivan Lumber Company, was brought home to his [the father's] knowledge, and he did nothing, that would be an assent."

Plaintiff's counsel said: "That's what we except to." The court had charged that--

"Count 2 of the complaint is based on the fact that the Alger-Sullivan Lumber Company employed the minor son of Hayes Allen without first getting his consent and without his knowledge;" that "one of the mooted questions in the case [was] whether or not Hayes Allen knew that his son was employed by this company, and *** whether or not he assented, consented, or had knowledge that his son was working for the Alger-Sullivan Lumber Company. Now this consent or knowledge may be direct or implied, but just so it brought home knowledge to Hayes Allen that his son was working for the Alger-Sullivan Lumber Company, and he made no effort to prevent that, then that is an assent to the fact that his knowledge, to bring home to his knowledge the fact that he was working for the company. *** If you are reasonably convinced that Hayes Allen gave his consent or assent, either directly or implied, that his son worked there, and that this place was a place of safety and not a dangerous place, then in that event the plaintiff could not recover under count 2, but, on the other hand, you find that Hayes Allen never gave his consent, but that they, the Alger-Sullivan Lumber Company, employed him without the consent of Hayes Allen, either directly or implied, *** then" the jury would "find whether they placed him in a dangerous and hazardous position. If you find that they did, and that he didn't give his consent, then your verdict, should be for the plaintiff [giving the form of the verdict]."

Continuing:

"*** If you find upon the other hand that his father knew of his employment at this place, either directly or implied, and assented to it, then the form of your verdict would be, 'We, the jury, find for the defendant.' "

Thereupon plaintiff's counsel said:

"We reserve an exception to this part of your honor's oral charge to the jury: 'If Hayes Allen heard he was working for the Alger-Sullivan Lumber Company, and did nothing that would be an assent on his part.' "

When the whole of the oral charge is considered, the issue of fact under the law having application to the second count was correctly stated to the jury.

The case of Gulf, Colorado & Sante Fé Ry. Co. v. Redeker, 75 Tex. 310, 12 S.W. 855, 16 Am.St.Rep. 887, 890, is not to the contrary. That case turned upon the fact that the knowledge of employment of the minor son was charged to the mother, and not to the father, "the managing head of the family, except in extreme cases." The rule in this jurisdiction is stated in T.C.I. & R.R. Co. v. Crotwell, 156 Ala. 304, 306, 47 So. 64, as follows:

"The burden of proof was undoubtedly upon the plaintiff to substantiate the material allegations of her complaint. To this end she was under the duty of showing by some degree of proof that her son was a minor; that he was employed by the defendant without her consent; that the mine in which he was put to work by defendant was perilous and dangerous; and that he was injured while in the discharge of his duties under the employment."

The gravamen of count 2 is the employment without consent of the plaintiff in and about dangerous work, and that the plaintiff's intestate must have been injured while in the discharge of his duties of such employment. It could not be said that defendant was liable simply because it employed plaintiff's intestate, a minor, conceding such employment was without the father's consent; but the evidence must tend to show that plaintiff's intestate was injured while in the discharge of the duties at which he was employed or placed by the defendant. On former appeal it was held that the evidence or inferences to be drawn therefrom failed to show liability under count 2. On this appeal one of the witnesses testified on cross-examination that...