Doullut & Williams v. Hoffman

• Citation: 86 So. 73,204 Ala. 33
• Decision Date: 22 January 1920
• Docket Number: 1 Div. 124
• Parties: DOULLUT & WILLIAMS v. HOFFMAN.
• Court: Supreme Court of Alabama

86 So. 73

204 Ala. 33

DOULLUT & WILLIAMS
v.
HOFFMAN.

1 Div. 124

Supreme Court of Alabama

January 22, 1920

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by George Garner Hoffman, suing by his next friend, against Doullut & Williams. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given. [86 So. 74]

The following are the counts of the complaint referred to in the opinion:

(3) Plaintiff claims of the defendant the sum of $25,000 for that, heretofore, to wit, on the 23d day of September, 1918 the plaintiff was badly cut, burned, and hurt on his legs body, and his head, from which he suffered great pain, both in body and in mind, and by reason of which he was put to great loss of time and permanently injured so as to render him physically less efficient, and was put to great expense for medicine and medical attention in and about his cure

And the plaintiff avers that his said injuries were the proximate result of negligence of the defendant in the operation of a certain pile driver, upon which the plaintiff then was in the discharge of his duties under the employment of the Chickasaw Shipbuilding Company, for which the defendant was then and there driving piles by use of the said pile driver under a contract with the Chickasaw Shipbuilding Company by the terms of which the plaintiff, as the representative of the Chickasaw Shipbuilding Company, had the right to be upon said pile driver.

(4) Plaintiff claims of the defendant the sum of $25,000, for that, heretofore, to wit, on the 23d day of September, 1918, the plaintiff was badly cut, burned, and hurt on his legs, body, and his head, from which he suffered great pain, both in body and in mind, and by reason of which he was put to great loss of time and permanently injured, so as to render him physically less efficient, and was put to great expense for medicine and medical attention in and about his cure.

And the plaintiff avers that his said injuries were the proximate result of the negligence of the defendant, by reason of which a certain pile driver turned over, and the plaintiff avers that at the time that said pile driver turned over plaintiff was on said pile driver in the discharge of his duty as an employé of the Chickasaw Shipbuilding Company, for which company the defendant was then and there driving piles under a contract, by the terms of which the plaintiff as the representative of the Chickasaw Shipbuilding Company had the right to be upon said pile driver in the discharge of his duties.

(8) Plaintiff claims of the defendant the sum of $25,000, for that heretofore, to wit, on the 23d day of September, 1918, the plaintiff was badly cut, bruised, and hurt on his legs, body, and head, from which he suffered great pain, both in body and in mind, and by reason of which he was put to great loss of time and was permanently injured, and was put to great expense for medicine and medical attention in and about his cure.

And the plaintiff avers that his said injuries were the proximate result of the negligence of the defendant in the operation of a certain pile driver upon which the plaintiff then was in the discharge of his duties under the employment of the Chickasaw Shipbuilding Company, for which company the defendant was then and there driving piles by the use of said pile driver under a contract, by the terms of which it was provided that all work should be made and done under the direction and acceptance of the Chickasaw Shipbuilding Company's general superintendent, or his authorized assistant, and that all work should be done in conformity with such lines, levels, stakes, plans, specifications, and instructions as should be from time to time given by the Chickasaw Shipbuilding Company for the guidance and direction of the defendant, and which said contract provided that the plaintiff should be compensated by the Chickasaw Shipbuilding Company on a basis of cost, plus a percentage, which said provision made it necessary and proper that the Chickasaw Shipbuilding Company should keep itself informed as to the cost of said work as it progressed, and the plaintiff avers that in order to keep itself so informed the Chickasaw Shipbuilding Company employed a pile foreman, whose duty it was to ascertain and report to it the information necessary, and the plaintiff was one of said pile foreman, and as such required to ascertain and report said information, which required his presence, from time to time, upon said pile driver, and the plaintiff avers that the different pile foremen so employed had been in the habit of going upon said pile drivers in the performance of their duties with the knowledge and acquiescence of the defendant, and that while the plaintiff was so upon the pile driver of which he was in charge in accordance with said custom and in the discharge of his duties the said pile driver capsized by reason of the negligence of the defendant, or one of its servants, while acting within the scope of his duties as such servant, and inflicted upon the plaintiff the injuries on account of which this suit is brought, wherefore the plaintiff sues.

The following is plea 4:

That prior to the time plaintiff received his said injury, he had been directed and instructed [86 So. 75] by his superior in the employ of the Chickasaw Shipbuilding Company, not to be or go upon defendant's pile driver, but in violation of such directions and instructions, he went upon said pile driver while the same was in operation, and in violation of such instructions and directions was upon said pile driver when it turned over and injured him, and by being upon said pile

...