Appeal
from city court of Birmingham; W. W. Wilkerson, Judge.
Action
by Louella Buckalew, administratrix of the estate of William
H. Buckalew, deceased, against the Tennessee Coal, Iron &
Railroad Company, for the death of plaintiff's intestate.
From a judgment for defendant, plaintiff appeals. Reversed.
The
complaint was as follows: "First Count. The plaintiff
claims of the defendant twenty thousand dollars as damages
for that heretofore, on, to wit, 16th day of November, 1893
defendant was running and operating a certain coal mine
known as 'Shaft Number One,' at or near Pratt City
in Jefferson county, Alabama, and, in or about the running
thereof, compelled plaintiff's intestate, who was a
convict, to be in said mine; that the roof of said mine, over
the place where plaintiff's intestate was compelled to be
as aforesaid, defendant negligently caused or allowed to be
or remain insecure and liable to fall, and by reason thereof
said roof, or a part thereof, did fall, and crush to death
plaintiff's said intestate. Second Count. Plaintiff
claims of defendant the further sum of twenty thousand
dollars for that heretofore, on, to wit, 16th day of
November, 1893, defendant was running and operating a certain
coal mine at or near Pratt City, in Jefferson county
Alabama, and, in or about the running and operation thereof
compelled plaintiff's intestate, who was a convict, to be
in said mine; that, while plaintiff's intestate was in
said mine as aforesaid, defendant, through its agent, to wit,
one George Miller, negligently caused a part of the roof of
said mine, at the place where the plaintiff's said
intestate was, to fall upon him and crush him so that he died
by reason thereof. Third Count. Plaintiff claims of defendant
the further sum of twenty thousand dollars for that
heretofore, on, to wit, 16th day of November, 1893, defendant
was running and operating a certain coal mine at or near
Pratt City, in Jefferson county, Alabama, and, in or about
the running and operating of said mine, compelled
plaintiff's said intestate, who was a convict, to be in
said mine; and, while plaintiff's said intestate was in
said mine as aforesaid, defendant, through its agent, to wit,
one George Miller, recklessly and wantonly or intentionally
caused a part of the roof of said mine, at the place where
plaintiff's said intestate was, to fall upon him and
crush him so that he died by reason thereof. Fourth Count.
Plaintiff claims of defendant the further sum of twenty
thousand dollars for that heretofore, on, to wit, 16th day of
November, 1893, defendant was running and operating a certain
coal mine at or near Pratt City, in Jefferson county,
Alabama; that on said day plaintiff's intestate was a
convict for a short term, and had been leased or let by the
proper authorities to defendant, and on said day was being
worked as such convict by defendant, in said mine, under the
superintendence of one George Miller; that George Miller was
an unfit person in whom to trust such superintendence, in
that he was incompetent or careless, and defendant was
negligent in trusting said Miller with superintendence as
aforesaid, and in consequence thereof said Miller caused a
part of the roof of said mine to fall upon plaintiff's
said intestate and crush him so that he died by reason
thereof. Fifth Count. Plaintiff claims of defendant the
further sum of twenty thousand dollars for that heretofore,
on, to wit, 16th day of November, 1893, defendant was running
and operating a certain coal mine at or near Pratt City, in
Jefferson county, Alabama; that on said day plaintiff's
intestate was a convict for a short term, and had been leased
or let by the proper authorities to defendant, and on said
day was being worked as such convict by defendant, in said
mine, under the superintendence of one George Miller; that
said George Miller was intrusted by defendant with
superintendence, and in the exercise of such superintendence
he, said George Miller, negligently caused or allowed a part
of the roof of said mine to fall upon plaintiff's said
intestate and crush him so that he died by reason thereof.
Sixth Count. Plaintiff claims of defendant the further sum of
twenty thousand dollars for that heretofore, on, to wit, 16th
day of November, 1893, defendant was running and operating a
certain coal mine at or near Pratt City, in Jefferson county,
Alabama; that on said day plaintiff's intestate was a
convict for a short term, and had been leased or let by the
proper authorities to defendant, and on said day was being
worked as such convict by defendant, in said mine, under the
superintendence of one George Miller; that said George Miller
was intrusted by defendant with superintendence, and in the
exercise of such superintendence he, said George Miller,
recklessly and wantonly, or intentionally, caused or allowed
a part of the roof to fall upon plaintiff's said
intestate and crush him so that he died by reason
thereof." Defendant demurred to the first count upon the
following grounds: "(1) It is not shown how the
defendant compelled the intestate to be in its said mine. (2)
The relationship between the intestate and defendant at the
time of intestate's death is not sufficiently shown. (3)
The facts constituting the alleged negligence of the
defendant in causing or allowing the roof to be or remain
insecure and liable to fall are not sufficiently
averred." To the second count the defendant demurred
upon the first and second grounds interposed to the first
count, and the following additional grounds: "(3) Said
count fails to show that the defendant would be liable to
plaintiff's intestate for the negligence of its agent,
George Miller. (4) Said count fails to show in what the
alleged negligence of said George Miller consisted." To
the third count the defendant demurred, in addition to the
first and second grounds which were interposed to the first
count, upon the following grounds: "(3) There are no
facts averred which show that the said George Miller, in
recklessly, wantonly, or intentionally causing said roof to
fall, acted within the scope of his authority as
defendant's agent, so as to bind defendant therefor. (4)
Said count fails to show that defendant was liable for
reckless, wanton, or intentional act of its agent, George
Miller." To the fourth, fifth, and sixth counts the
defendant demurred upon the following grounds: "(1) Said
count fails to aver what the terms of said lease were, or
what duties it imposed on defendant with reference to the
care of the convicts leased under it." To the fourth
count the defendant also demurred upon the following grounds:
"(2) Said count fails to show that the defendant, under
said lease, owed the intestate the duty of exercising proper
diligence in providing a fit and careful superintendent. (3)
Said count fails to show that said Miller negligently or
wrongfully caused a part of said roof to fall on
plaintiff's intestate." To the fifth count defendant
demurred, also, on the following grounds: "(2) Said
count fails to show that the defendant, under said lease,
owed the intestate any duty of exercising care in regard to
the condition of its roof in its said mine. (3) Said count
fails to show that the defendant was responsible to the
intestate for the negligence of its superintendent, George
Miller." Defendant also interposed the following grounds
of demurrer to the sixth count: "(2) Said count fails to
show that the defendant, under said lease, owed the intestate
any duty of exercising care in regard to the condition of its
roof in said mine. (3) Said count fails to show that the
defendant was responsible to intestate for the reckless,
wanton, or intentional act of its superintendent, George
Miller, in causing or allowing a part of said roof to fall on
intestate." Defendant also demurred to the complaint as
a whole, and to each count thereof separately and severally,
upon the following grounds: "(1) It appears from the
allegations of said complaint that, had the intestate lived,
he could not have maintained an action for the wrongful act,
omission, or negligence which it is alleged caused his death,
if it had not caused death, because at the time of his injury
he was a convict, and civilly dead, and could not maintain an
action against defendant therefor. (2) Misjoinder of counts,
in this: that the first, second, third, and fourth counts are
framed under the common-law liability of defendant and
section 2589 of the Code of 1886, and the fifth and sixth are
framed under the employés act (section 2590 of the Code of
1886). (3) Because it appears from said counts that the
injury and death of plaintiff's intestate were caused by
the negligence of a fellow servant of plaintiff's
intestate, and it is not alleged that defendant was negligent
in the employment or retention of said fellow servant, nor
are such facts alleged as to bring said case within the
purview of section 2590 of the Code." The demurrers to
the second and third counts of the complaint were sustained,
and to the others the demurrers were overruled. To each of
these rulings, defendant excepted. Defendant filed the
following pleas: "(1) Defendant, for answer to the
complaint, says that it is not guilty of the matters therein
charged. (2) For answer to the first count of plaintiff's
complaint, defendant says that the cause of action therein
sued upon is barred by the statute of limitations of one
year. (3) For answer to the fourth count of plaintiff's
complaint, defendant says that the cause of action therein
sued upon is barred by the statute of limitations of one
year. (4) For answer to the fifth count of plaintiff's
complaint, defendant says that the cause of action therein
sued upon...
