Grissom v. Atlanta & B. Air Line Ry.

• Decision Date: 02 July 1907
• Citation: 44 So. 661,152 Ala. 110
• Parties: GRISSOM v. ATLANTA & B. AIR LINE RY.
• Court: Alabama Supreme Court

44 So. 661

152 Ala. 110

GRISSOM v. ATLANTA & B. AIR LINE RY.

Supreme Court of Alabama

July 2, 1907

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by C. W. Grissom, as administrator, etc., against the Atlanta & Birmingham Air Line Railway. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Affirmed.

Blackwell & Agee, for appellant.

W. C Tunstall, Jr., for appellee.

SIMPSON J.

This appeal is from the judgment of the court sustaining certain demurrers to counts in the complaint. The action is for damages on account of the death of plaintiff's (appellant's) intestate, and the main contention is whether or not the counts demurred to allege such a relation between said intestate and the defendant as to create the status of master and servant and render the defendant liable for negligence. The counts do not aver that the relation of master and servant, or employer and employé, existed, but state that the intestate's brother was in the employ of defendant, and that his duties were to pump water into a tank along the line of the defendant's railroad, by means of a gasoline engine, for the use of locomotives, and that his said brother "had plaintiff's intestate to assist and aid him in running the gasoline engine and keeping the tank filled with water," and that he "had been so assisting * * * for about two years prior to" the date of the accident, "with the knowledge and consent of the defendant," or, as stated in the third count, that "said intestate, a youth 16 years of age, was operating said pump from day to day, with and by the knowledge of the defendant and of defendant's pump repairer." "Actionable negligence is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence. * * * The duty must be to the person injured." Southern Ry. Co. v. Williams, 143 Ala. 212, 38 So. 1013. It follows that it is necessary for a complaint, claiming damages for an injury caused by negligence, to allege such relationship between the plaintiff and the defendant as to raise the duty. Logan, Adm'r v. Central Iron & Coal Co., 139 Ala. 548, 36 So. 729; Holmes v. Birmingham Southern R. R. Co., 140 Ala 208, 213, 37 So. 338; Ensley Railway Co. v Chewning, 93 Ala . 24, 25, 9 So. 458; 13 Am. & Eng. Ency. Pl. & Pr. 893.

The only suggestion of any relation, raising a duty, is that of employer and employé. This court has said that "under the statute the party claiming damages must be an employé at the time of the injury, by contract, express or implied, binding on defendant." Ga. Pac. R. R. Co. v. Propst, 85 Ala. 203, 205, 4 So. 711. Even if he is an employé, he must be acting within the scope of his employment at the time of his injury. Southern Railway Co. v. Guyton, 122 Ala. 231, 240, 25 So. 34. Although there are a few cases, in other states, which do not adhere closely to the rule, yet the great weight of authority is that a person who volunteers to assist an employé, whether by request or otherwise, cannot thereby establish the relation of employer and employé, so as to claim for negligence, based on the duty which the employer owes to the employé. 2 Labatt's Master & Servant, § 630; Everhart v. Terre Haute & Indianapolis R. R., 78 Ind. 292, 41 Am. Rep. 567, 571; note to Fox v. Sanford, 67 Am. Dec. 597; Church v. Chicago, M. & St. P. R. Co., 50 Minn. 218, 52 N.W. 647, 16 L. R. A. 861, and note; Evarts v. St. Paul, M. & M. R. Co., 56 Minn. 141, 57 N.W. 459, 22 L. R. A. 663, 45 Am. St. Rep. 460, and note; Southern Railway Co. v. Guyton, 122 Ala. 231, 240, 25 So. 34.

It is insisted, however, that the allegations of these counts present a case where the employer, by assenting to the service performed by the intestate, virtually made him its employé, so that the duties of master were assumed. There are some intimations in the books of such a principle. In the case of Bradley v. N.Y. Cent. R. R., 62 N.Y. 99, a party...