Cahaba Coal Co. v. Elliott

• Decision Date: 15 May 1913
• Citation: 183 Ala. 298,62 So. 808
• Parties: CAHABA COAL CO. v. ELLIOTT.
• Court: Alabama Supreme Court

62 So. 808

183 Ala. 298

CAHABA COAL CO. v. ELLIOTT.

Supreme Court of Alabama

May 15, 1913

On Rehearing June 19, 1913

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by J.T. Elliott against the Cahaba Coal Company, for injuries, while in its employment. Judgment for plaintiff and defendant appeals. Reversed and remanded.

McClellan J., dissenting.

Count 11 is as follows: "Plaintiff claims of defendant the sum of $25,000 as damages for that whereas, on or about the 1st day of April, 1912, defendant was operating a coal mine in Shelby county, Ala., in connection with which it operated coal mining machinery, consisting of, among other things, a hopper, in which rock was dumped, and a tramway extending from under said hopper out and away from the same at a considerable incline. At the end, or near the opposite end of said tramway from said hopper there was an engine used as a motive power to draw a tram or rock car on said tramway by means of a cable. Said engine was used to furnish the motive power to draw said tram or rock car up said incline of said tram railway, and to lower the same back beneath and under said hopper for the purpose of being loaded with rock from said hopper, and plaintiff avers that said hopper was inclosed with a plank inclosure, and the said hopper was supported by framework foundation, and in the operating of said defendant's business rock from defendant's mine was loaded into or emptied into said hopper and emptied out of said hopper into said tram or rock car, and carried from there up or near where said engine was located, as aforesaid and dumped out of said car, and plaintiff avers that on said date the said engine which furnished the power to hoist and lower said tram or rock car was in charge of defendant's engineer, and was being operated by him, and on said date plaintiff was employed by defendant in the capacity of blacksmith, and plaintiff avers that while he was thus employed or engaged in the service of defendant, and acting within the line and scope of his duty as the defendant's employé, and engaged in the service of defendant for which he was employed by defendant, in and about repairing said hopper or foundation of said hopper, said tram or rock car was caused to run or back against the plaintiff, and fastened plaintiff in between said car and said hopper, or the framework or foundation thereof, and as a proximate consequence thereof plaintiff was greatly, permanently, and severely injured as follows. (Here follows catalogue of injuries.) And plaintiff avers that he suffered said injuries and consequent damages by reason of and as a proximate consequence of the negligence of Charles Hines, who was at the time in the service or employment of defendant, and who had superintendence intrusted to him, and whilst in the exercise of such superintendence."

The demurrers were, in effect, that the count failed to point out the particular act of superintendence upon which plaintiff relied for recovery, and that the count fails to show wherein or how said superintendent was negligent whilst in the exercise of such superintendence.

Charles A. Calhoun, of Birmingham, for appellant.

Riddle, Ellis, Riddle & Pruet, of Goodwater, and Riddle & Burt, of Talladega, for appellee.

McCLELLAN, J.

Action by servant (appellee) against the master (appellant) for damages for personal injuries received while engaged in the master's service. Of the 16 counts filed, only count 11 was submitted to the jury. That count was designed to state a cause of action under subdivision 2 of the Liability Act (Code, § 3910). The report of the appeal will contain count 11.

Upon the authority of Woodward Iron Company v. Marbut, 62 So. 804, in treating count 4 in that case, the majority of the court hold that count 11 was subject to the demurrer, which the trial court overruled. The reversal of the cause necessarily follows.

On what appears to me to be the apt authority afforded by Alabama Great Southern Railroad Company v. Davis, 119 Ala. 572, 24 So. 862, affirming the sufficiency of count 1, decided 14 years ago--Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700, affirming the sufficiency of count 3, decided in 1902, and particularly Creola Lumber Co. v. Mills, 149 Ala. 474, 42 So. 1019, affirming the sufficiency of count 1, decided in 1906--the writer dissents from the conclusion prevailing in this and the Marbut Case (supra) in respect of the sufficiency of counts 11 and 4 in these cases. The only decision opposed to the three cases above cited is the Maddox Case, 171 Ala. 216, 224, 55 So. 93, decided in 1911; and there no account appears to have been taken of the decisions contrary to which it concludes. These decisions viz., Davis, Parker, and Mills (supra), cannot, in my opinion, be rationally distinguished to the end that the inapplication of their clear doctrine can be conceived or effected. I am unwilling, without ample warning to the trial courts and to the profession, to overrule them after they have stood unquestioned, and doubtless have been frequently followed and relied upon by the trial courts and the profession for so many years.

The process of attempting the differentiation of previous decisions by recourse to the facts only, and not by reference also to the principle which such decisions illustrate, will lead inevitably to confusion, uncertainty, and conflict. The facts of a case may avert the application of a principle; but facts that invoke the application of a principle may be as variant as human action, and yet the principle applicable must, if reason reigns and logic leads, cast the legal conclusion. If the Davis, Parker, and Mills Cases are wrong, they should be overruled, and not left to establish or create a line of authority opposed to the presently prevailing view.

According to the view of the majority, the judgment is reversed, and the cause is remanded.

ANDERSON, MAYFIELD, SAYRE, SOMERVILLE, and DE GRAFFENRIED, JJ., concur. McCLELLAN, J., dissents. DOWDELL, C.J., not sitting.

On Rehearing.

McCLELLAN J.

After full consideration by the court of the arguments and authorities presented in the brief of appellee's counsel in support of the application for rehearing, the majority of the court adhere to their original view that count 11 was subject the demurrer as indicated by the opinion in Marbut's Case (ante), and hence overrule the application for rehearing. The writer's opinion in dissent, is further confirmed as the result of the consideration afforded by the application for rehearing. I can but regret that the so rationally founded and thoroughly supported (by the deliverances made in the Davis, Parker and Mills Cases) rule which count 11 here, and count 4 in the Marbut Case, perfectly illustrate should, at this late day, be departed from. That longrecognized rule conforms to simplicity in pleading, and so without the slightest possible prejudice to a defendant in the opportunity to prepare for and present his defense. The rule declared and applied in this and in the Marbut Case must, if enforced, exact, it seems to me, an wholly unnecessary multiplication of and particularity in counts where the second subdivision of the Liability Act (Code, § 3910) is attempted to be availed of in an action by a servant, and in consequence subject the administration of the law in such cases to a system of detail in pleading, under that subdivision, that cannot be of any practical benefit to any one.

It is insisted for appellee that the three distinct considerations to be quoted prevent the review here of the trial court's action in overruling the demurrer to count 11. They are these: "(a) The judgment entry does not show any ruling of the lower court on demurrers to count No. 11 of the complaint, and only shows a ruling on the demurrers to the complaint; (b) after the evidence was all in, the judgment entry affirmatively shows that the plaintiff amended the complaint, and that on the complaint as amended issue was joined, and that no demurrers were refiled to the complaint after it was amended; (c) there is only one assignment of error based on the court's ruling on demurrer. It is assignment of error No. 1, in the following language: '1. The lower court erred in overruling appellant's demurrers, and each separate ground thereof to the eleventh count of plaintiff's complaint as last amended.' Tr. pp. 19, 4 to 8, 12 to 15." The unanimous opinion of the court is that none of these propositions asserted for appellee are well taken or have merit.

So far as it has bearing on these propositions, the judgment is as follows: "The court granted the plaintiff leave to file and the plaintiff did file, an amendment to the complaint, adding counts No. 6 to No. 16, both inclusive, as shown by separate paper writing on file, and striking from the complaint count No. 1 to No. 5, both inclusive, and the plaintiff further amends the complaint by amending count No. 12, and by adding count No. 13 1/2, as shown by separate paper writing on file. Whereupon the defendant demurred to the complaint as shown by separate paper writing on file, which demurrers being argued by counsel for the plaintiff and the defendant, and the same being heard, considered, and understood by the court, it is therefore ordered, considered, and adjudged by the court that said demurrers be and they are hereby overruled. *** And after the evidence was all in the plaintiff further amended the complaint by withdrawing and striking from the complaint and the files each and every count of the complaint, except count No. 11 and count No. 13 1/2, and except that part of count No. 6 which...