Guiler v. U.S. Cast Iron Pipe & Foundry Co.

• Decision Date: 01 June 1916
• Docket Number: 6 Div. 348
• Citation: 197 Ala. 233,72 So. 498
• Parties: GUILER v. UNITED STATES CAST IRON PIPE & FOUNDRY CO.
• Court: Alabama Supreme Court

72 So. 498

197 Ala. 233

GUILER v. UNITED STATES CAST IRON PIPE & FOUNDRY CO.

6 Div. 348

Supreme Court of Alabama

June 1, 1916

Rehearing Denied June 30, 1916

Appeal from City Court of Birmingham; A.H. Alston, Judge.

Action by W.A. Guiler against United States Cast Iron Pipe & Foundry Company for damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Plaintiff stated his case in his original complaint, claiming $5,000 as damages, for that defendant was engaged in the operation of a manufacturing plant at North Birmingham, Ala., for the manufacture of pipe and other products and at said time and place had in its employ one Washington, whose name was otherwise unknown to plaintiff, as a laborer, and plaintiff was also in the employment of defendant as a foreman but said Washington was not working under the superintendence of plaintiff. Plaintiff avers that while said Washington was engaged in the line and scope of his employment in screening some sand, he threw a heavy clamp or piece of iron over and against the head of plaintiff, striking him thereon with force and violence (here follows damages inflicted). And plaintiff avers that said Washington was incompetent to perform said labors by reason of being about or almost blind and the said injuries to plaintiff were caused proximately by reason of said incompetency; and plaintiff avers that at and before the time of his said injuries, defendant was informed of said incompetency of said Washington, and with such information it negligently retained and employed said Washington in said position. The judgment entry recites that demurrers were sustained four times and finally it was ordered and adjudged by the court that said demurrers be, and were hereby, sustained. The plaintiff for the fifth time offered to amend the complaint, and the court declines to allow plaintiff to so amend unless he can allege some new matter, to which ruling of the court plaintiff excepts. Plaintiff moves the court now to enter a nonsuit in said court; wherefore it is ordered and adjudged by the court that a nonsuit be, and it is hereby, entered in this cause, etc.

McArthur & Howard, of Birmingham, for appellant.

Estes &amp Jones, of Bessemer, for appellee.

ANDERSON C.J.

The original complaint, consisting of count 1, proceeded under the common law and was not subject to the grounds of demurrer interposed to same, and which the trial court erred in sustaining. The complaint charged that the injury sustained by the plaintiff was the proximate result of the act of a fellow workman while in the discharge of a duty connected with his employment, and which said duty he was incompetent to perform, and that his said incompetency was known to the defendant. First Nat. Bank v. Chandler, 144 Ala 286, 39 So. 822, 113 Am.St.Rep. 39. It may be that the complaint should aver that the plaintiff was rightfully where he was when...