Foreman v. Dorsey Trailers, 4 Div. 622

• Court: Supreme Court of Alabama
• Writing for the Court: FOSTER; LIVINGSTON
• Citation: 256 Ala. 253,54 So.2d 499
• Parties: FOREMAN v. DORSEY TRAILERS, Inc.
• Docket Number: 4 Div. 622
• Decision Date: 11 October 1951

Page 499

54 So.2d 499 256 Ala. 253 FOREMAN
v.
DORSEY TRAILERS, Inc. 4 Div. 622. Supreme Court of Alabama. Oct. 11, 1951.
Rehearing Denied Dec. 21, 1951.

[256 Ala. 254]

Page 501

C. L. Rowe, Elba, for appellant.

[256 Ala. 255] Dryer & Dryer, Birmingham, for appellee.

FOSTER, Justice.

This suit comes here on a nonsuit taken by appellant, plaintiff below, on account of the adverse rulings of the court on the pleading.

Appellant has assigned as error, first, the ruling sustaining the demurrer to counts 1 and 2 as originally filed. Both of those counts were amended and count 1 was later withdrawn before the ruling which precipitated the nonsuit. Count 2 as finally amended was held to be free from the demurrer. Under those circumstances the statute, section 819, Title 7, Code, does not support a review of those rulings. Engle v. Patterson, 167 Ala. 117, 52 So. 397; Alabama Great Southern R. Co. v. H. Altman & Co., 191 Ala. 429, 67 So. 589; Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Cauble v. Boy Scouts of Am., 250 Ala. 152, 33 So.2d 461.

[256 Ala. 256] The other assignments of error go to the ruling of the court holding that pleas IX and XI, respectively, are free from the demurrer interposed to them. That ruling precipitated the nonsuit. At the time the ruling was made, there was only one count retained, and that was count 2. Before that ruling was made, plaintiff amended both counts by striking out certain words, and then struck count 1 and again amended count 2 by striking out certain words. So that before ruling on pleas IX and XI, count 2 undertook to claim for a wanton injury to plaintiff, alleging that defendant wantonly injured plaintiff, and struck out that part of count 2 which had alleged that plaintiff 'was ignorant of the qualities of said paint and of the fumes or small particles thereof which were caused to be suspended in the air of said room in the operation of said spray guns which were furnished to him by the defendant for the performance of the duties of his employment, and he was ignorant of the effect of the same on the human body and in the human system.' The effect of count 2 as last amended is to state facts thought to show the breach of a duty to plaintiff in respect to his place of employment; that his employment was painting truck trailers produced by defendant, in which a spray gun was used which saturated the air with paint fumes and particles which caused lead poison, by reason of insufficient ventilation known by defendant, to have that effect upon the human body and in the human system. The count then alleges that defendant wantonly injured plaintiff by causing him to perform his duties in said room which was not safely ventilated.

We also call attention to the allegation in the count that plaintiff sues under the Employers' Liability Act, Code 1940, Tit. 26, § 326 et seq., for his damages. We observe here, as stated above, that such duty as defendant owes plaintiff as an employee in the respect here indicated is to exercise due care to provide a reasonably safe place in which to perform his duties. His negligent failure to do so gives rise to a simple negligence count when it proximately causes the injuries, and his wanton failure to do so gives rise to a wanton count when it proximately causes the injuries. This is a common law duty enacted

Page 502

by statute, section 12, Title 26, Code, and not dependent upon the Employers' Liability Act. But the designation in a complaint of the law sought to be applied is not fatal though the law so designated does not apply, but there is a law which does apply and it is controlling. It is not in the province of the litigant to designate the law which fixes his cause of action. That would be in effect legislating. Patterson v. Jefferson County, 238 Ala. 442, 191 So. 681; Phenix City v. Alabama Power Co., 239 Ala. 547, 195 So. 894.

Except as modified by statute, a servant assumes the risk of injury caused by a fellow servant. This is the common law doctrine. Boggs v. Alabama Consol. Coal & Iron Co., 167 Ala. 251, 52 So. 878.

The State Employers' Liability Act, section 326, Title 26, Code, modifies this principle in so far as the negligence of a fellow servant is concerned. So that if the complaint counts on the negligence of a fellow servant, the complaint should allege the existence of matter made necessary to that end by the statute, and a general averment of negligence by a fellow servant is not sufficient. Southern Ry. Co. v. Cooper, 172 Ala. 505(8), 55 So. 211; Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62(8), 51 So. 345; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143(1), 10 So. 87; Mobile & O. R. Co. v. George, 94 Ala. 199(4), 10 So. 145.

While this statute refers in terms to negligence, it also includes wantonness. Southern Ry. Co. v. Moore, 128 Ala. 434, 29 So. 659; Louisville & Nashville R. R. Co. v. York, 128 Ala. 305, 30 So. 676; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74. The statute refers to the negligence of defendant also as being within its influence. But if the negligence or wantonness is not that of a fellow servant, a common law duty of defendant is involved. Southern Sewer Pipe Co. v. Hawkins, 192 Ala. 380, 68 So. 271; Southern Iron & Steel Co. v. Boston, 190 Ala. [256 Ala. 257] 30, 66 So. 684. As to a safe place in which to work, this duty is also, as we have said, included in section 12, Title 26, Code. When that common law duty is shown by the complaint to exist, it is not necessary to make the allegations required by section 326, Title 26, supra, which are necessary when the complaint may be proven by showing the negligence of a fellow servant. The common law duty of a master to exercise due care to furnish a reasonably safe place to work is not delegable and, therefore, the fellow servant doctrine does not apply. Gentry v. Swann Chemical Co., 234 Ala. 313(3), 174 So. 530; Woodward Iron Co. v. Boswell, 199 Ala. 424, 75 So. 3; Woodward Iron Co. v. Nunn, 205 Ala. 543, 88 So. 659; Langhorne v. Simington, 188 Ala. 337, 66 So. 85; but to maintain its safety, if reasonably safe when the work began, may be delegated, Woodward Iron Co. cases, supra; Southern Brilliant Coal Co. v. McCollum, 200 Ala. 543...