Coal City Mining Corporation v. Davis

• Decision Date: 18 March 1919
• Docket Number: 7 Div. 567
• Citation: 81 So. 358,17 Ala.App. 22
• Parties: COAL CITY MINING CORPORATION v. DAVIS.
• Court: Alabama Court of Appeals

81 So. 358

17 Ala.App. 22

COAL CITY MINING CORPORATION v. DAVIS.

7 Div. 567

Court of Appeals of Alabama

March 18, 1919

Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.

Action by L.H. Davis against the Coal City Mining Corporation and others. From judgment for plaintiff, the named defendant appeals. Reversed and remanded.

Knox Acker, Dixon & Sims, of Talladega, for appellant.

S.W Tate, of Anniston, for appellee.

SAMFORD J.

The first and second assignments of error are based upon the rulings of the trial court on demurrer to the complaint. These assignments are not considered for the reason that there is no judgment on demurrer shown in the record that will support an appeal. What purports to be a copy of the judge's bench notes appears, but this is not sufficient and is not a judgment of the court.

The facts in this case are very similar to the statement of facts as set out in the opinion of Mr. Justice Thomas in the case of Amerson v. Coronoa Coal & Iron Co., 194 Ala. 175 69 So. 601, in which the Supreme Court held that the question as to whether the contract of lease was a subterfuge was properly submitted to the jury. Upon similar statements of fact, the decision in the Amerson Case has been followed in Sloss-Sheffield Steel & Iron Co. v. Hubbard, 14 Ala.App. 139, 68 So. 571; Corona Coal & Iron Co. v. Amerson (Sup.) 75 So. 289; Oden-Elliott Lumber Co. et al. v. Rowe (Sup.)

77 So. 552; and Connors-Weyman Steel Co. v. Kilgore (Sup.) 80 So. 454. These cases seem to lay down the rule that where the mine and all the equipment is owned by the corporation and leased by it to other parties as it stands without apparent change of possession, the mine owner continuing to pay the employés, without notice of any change in the possession, it becomes a question for the jury to say whether the contract of lease is a subterfuge as it affects the workers in the mine and other parties contracting with the lessees. However much the writer might be inclined to a different view, this court is bound by the latest utterances of the Supreme Court, and therefore, under the facts of the instant case, it was a question for the jury to determine who was the employer of the plaintiff at the time of the injury.

Upon the trial, after the court had given its oral charge to the jury, the defendant the Coal City Mining Corporation excepted to that part of the court's oral charge as follows:

"If you believe under the evidence in the case that plaintiff is entitled to recover, then you must determine from this evidence whether he is entitled to recover; he cannot recover under the evidence in the case against the mining corporation and also against these other four defendants."

The same defendant excepted to the following portion of the court's oral charge:

"If the four defendants were independent contractors and injured this plaintiff, they are liable, and the mining company would not be; if they were not independent contractors and the mining company was operating the mine, then the mining company would be liable, and these other defendants would not be."

The same defendant also excepted to the following excerpt from the court's oral charge:

"Under the evidence in this case, the burden of proof is on the defendant corporation to show that it was not operating that mine."

The same defendant also requested the court, in writing, to give the general affirmative charge in its behalf, which the court refused to do.

The plaintiff sued as an employé, and as a basis of his right of recovery alleged in both counts of his complaint that he was employed by the "defendants." That includes all of the defendants. If the complaint had alleged that the plaintiff was employed by the Coal City Mining Corporation "or'? Crump et als., the complaint would have been demurrable on account of a misjoinder of parties defendant. The plaintiff would not be allowed to sue two separate and distinct employers in the same action, and, having alleged that he was the employé of all the defendants, it became his duty to so prove; the burden resting upon him. Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721; Dean v. E.T., Va. &...