Boggs v. Alabama Consol. Coal & Iron Co.

• Decision Date: 03 February 1910
• Parties: BOGGS v. ALABAMA CONSOL. COAL & IRON CO.
• Court: Alabama Supreme Court

52 So. 878

167 Ala. 251

BOGGS v. ALABAMA CONSOL. COAL & IRON CO.

Supreme Court of Alabama

February 3, 1910

Rehearing Denied June 30, 1910.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by Lawrence P. Boggs against the Alabama Consolidated Coal &amp Iron Company. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed and remanded.

Mayfield J., dissenting.

Collier & Scrivner and Allen & Bell, for appellant.

Tillman Bradley & Morrow, for appellee.

SAYRE J.

There were 12 counts in the complaint to all of which, in their final shape, demurrers were sustained. The complaint alleges that plaintiff's intestate and the engineer of whose negligence he complains were both in the employment of the defendant and engaged at the time of the injury in the discharge of duties imposed upon them by their employment. No doubt the effort of the pleader was to state a case within the fifth subdivision of the employer's liability act (Code 1907, § 3910). No doubt, also, the court below felt constrained by the decision of this court in Alabama Steel & Wire Company v. Griffin, 149 Ala. 423, 42 So. 1034, subsequently approved by a majority of the court in Woodward Iron Company v. Curl, 153 Ala. 215, 44 So. 969, and in Pear v. Cedar Creek Mill Co., 156 Ala. 263, 47 So. 110, to hold that the complaint stated no cause of action under the statute; this for the reason that the complaint showed that the plaintiff's intestate was employed as a carpenter in and about the defendant's mine, so that he was not of that class of railroad employés for whose benefit the statute was said in Griffin's Case to have been enacted. It is now insisted that the cases referred to were based upon a misconception of the meaning of the statute, and a formal dissent by one member of the court, and the reluctant acceptance of those cases by some members of the bar who appear to have given the question special attention, as well as the earnest protest of the appellant in this case, seem to justify some further examination of the subject.

It is familiar law that, except as modified by the employer's liability act, a servant undertakes, as between himself and his master, to run all the ordinary risks of the service, and this includes the risk of injury caused by the negligence of a fellow servant while acting within the scope of his employment. And this court, in Central of Georgia v. Lamb, 124 Ala. 172, 26 So. 969, held that the employé assumed also the risk of injury resulting from the wanton or willful wrongdoing of fellow employés except in the instances provided for in the act. The reason assigned for this rule is that the servant knows when he enters the service that he will be exposed to the hazard of injury from negligence on the part of his fellow servants, and he must be supposed to have contracted on the terms that as between himself and the master he would assume the risk. In Smoot v. M. & M. Ry. Co., 67 Ala. 13, it is stated by the court that there is also a higher reason for relieving the master from liability for such injuries, founded in the policy of encouraging and compelling the servant to exercise diligence and caution in the discharge of his duties, which, while protecting him, affords protection also to the master; such diligence being properly esteemed a better security against injury from the negligence of a fellow servant than recourse against the master for damages, when the injury has been received. The cogency and sufficiency of the reason stated in the Smoot Case has been much doubted. It occurs to us that the assumption of risk by implied contract is the juristic basis of the doctrine of common employment, while the encouragement and compulsion of the servant to the exercise of diligence, thus fostering industrial enterprises, constitute its justification as an economic policy. However that may be, the common-law doctrine of the contract assumption of risk, including the risk of injury from the negligence of co-employés, is too firmly established to be disturbed by the courts. But every legislative enactment on the subject implies an upturning of the supposed policy because not justified by experience, and compels a narrowed and restricted application of the juristic theory.

It is proper at this point to remark that the servant stands in the position of assuming the risk only when he has received injury while acting in his master's service by the act of a fellow servant also so acting. In other words, the injured and the negligent servants or employés must have been engaged in a common employment. If the injured person was not so acting, he was one of the public; if the act which caused the injury was not within the scope of the negligent servant's employment, the master is not responsible. The employer's liability act has wrought certain changes in the law stated. But it is well enough to remember that it was no part of the purpose of the act to codify the whole law as to the liability of employers or to destroy any common-law right of servants. All servants are entitled to maintain actions against their employers in all cases where they could formerly have done so. Robts. & Wall. Duty & Liability of Employers, 207; Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N.E. 766, 5 L. R. A. 667; Colorado Milling Co. v. Mitchell, 26 Colo. 284, 58 P. 28. It is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely requires. Such has been the language of the courts in all ages. 1 Kent's Comm. 464. This court has repeatedly announced the general principle. The statute, however, is remedial and ought to be construed so as to advance the remedy. In M. & B. Ry. Co. v. Holborn, 84 Ala. 133, 4 So. 146, it is said that, while a narrow and restricted view of the statute should not be taken, the court, considering its objects, having regard to the intention of the Legislature, and taking a broad view of its provisions, commensurate with its proposed purposes, would not enlarge the term further than may be necessary to effectuate its manifest ends. In any view, there is no reason to suppose an intention to deprive servants injured by the negligence of other servants of any right of action they had at the common law. A servant injured by the negligent act of another servant acting for the common master within the scope of his employment cannot be denied the right of recovery in an action under the statute on the ground that he was not engaged in a common employment with the delinquent without conceding to him the right to recover under the common law as a stranger, for he must have a place in one category or the other. There can be no sufficient reason for marooning servants of the master who are fellow servants of the delinquent, but who do not engage in the operation of a railroad, in a class to themselves where, alone of all the world, they may not maintain a suit against the master for the injurious negligent act of another servant having charge or control of any special point, locomotive, engine, electric motor, switch, car, or train upon a railway, or of any part of the track of a railway. It seems, however, to be supposed, and the demurrer in this case asserts, that this has been the effect of the decisions to which we referred in the outset.

The statute deals only with those cases which at the common law were affected by the doctrine of common employment, for only in such cases was the servant denied the right to recover of the master for the negligence of another servant. Unless the negligent and the injured employés were engaged in a common employment, as affecting the master's liability, they stood to each other in the relation of strangers, although they may have been employed by a common master. "If the contract implied on the part of the servant is to bear the risk only of the business in which he is engaged, and not the risk of another business, he would not be prevented by his contract from maintaining an action against the master, if he were injured by the negligence of another servant of the same master, engaged in other business. His remedy would be restricted by the contract only as to the negligence of fellow servants engaged in the same general service, or those employed in the conduct of one common enterprise or undertaking, or those whose employment is such that, by their negligence in the usual line of their duty, he might reasonably expect to be endangered, or those whose negligence might be understood to be incident to his service." Fifield v. Northern Railroad Co., 42 N.H. 225. "As a laborer on a railroad track, either in switching trains or repairing the track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence in the management of such trains is a risk which may or should be contemplated by him in entering upon the service of the company. This is probably the most satisfactory test of liability. If the departments of the two servants are so far separated from each other that the possibility of coming in contact, and hence of incurring danger from the negligent performance of the duties of such other department, could not be said to be within the contemplation of the person injured, the doctrine of fellow service should not apply." Northern Pac. Railroad v. Hambly, 154 U.S. 349, 14 S.Ct. 983, 38 L.Ed. 1009.

"The principle underlying those decisions which hold a master liable to a servant for the negligent act of another servant in a separate and distinct department of the service is that a servant only assumes the risk from the negligence of those so closely associated with him that he is presumed to have contracted with reference to such work." L. & N. R R. Co. v....