Harris v. A.J. Spencer Lumber Co., Inc.

• Decision Date: 12 February 1914
• Citation: 64 So. 557,185 Ala. 648
• Parties: HARRIS v. A.J. SPENCER LUMBER CO., INC.
• Court: Alabama Supreme Court

64 So. 557

185 Ala. 648

HARRIS v. A.J. SPENCER LUMBER CO., INC.

Supreme Court of Alabama

February 12, 1914

Appeal from Circuit Court, Choctaw County; John T. Lackland, Judge.

Action by Ben Harris, Sr., against the A.J. Spencer Lumber Company Incorporated, for damages for the death of his minor son. Demurrers sustained to the complaint, and plaintiff declining to plead further, his cause was dismissed and he appeals. Affirmed.

The complaint is as follows: "Plaintiff claims of defendant the sum of $4,000, for the unlawful act of causing the death of Ben Harris, Jr., in that, on, to wit, at the time of said unlawful act causing the death of said Ben Harris, Jr., and since, during the year 1911, defendant was engaged in the business of logging, and as a means of the transportation of said logs from the forest where they were cut to the Bigbee river, in which they were thrown for further transportation by water, ran what is known as a logging train, consisting of cars on which said logs were hauled, to which was attached a steam locomotive to pull said cars from said forest to the said river, and Ben Harris, Jr., a son of plaintiff, and who was a minor, was employed by defendant as one of its servants to aid in placing the logs on said cars, and, when transported to the river bank, to aid in throwing said logs into the river, and in performing said service, he had to ride back and forth on said log train. On the 13th day of June, 1911, after said train had been loaded with logs, and started back to the river to unload the same, while sitting in or near the cab adjoining the engine, the place where he of right, had to be in performing his said duties as said servant of defendant, and under his employment by him for said services, and whilst said train was on its transit to its destination on said river, the cars which were drawn by the locomotive attached thereto, the engineer who was employed by defendant to run the same, by an unreasonable act in controlling said engine, caused the mud valve to be blown out of the boiler of the engine, through which a large volume of steam came therefrom, burning or scalding severely the face of said Ben Harris, Jr., and that in making an effort to get out of reach of said steam, and being blinded thereby, he jumped off of said locomotive and was killed." The second count alleges the same state of facts except it is alleged that the act of the engineer was unreasonable and wanton. The demurrers raise the question that complainant fails to show any duty which defendant owed the plaintiff, or Ben Harris, Jr., or its breach by defendant, its servants or agents; it is not shown what the unreasonable act of the engineer was; and because it fails to show the breach of any duty owing the plaintiff or his son.

W.F Glover, of Butler, for appellant.

Stevens McCorvey & Dean, of Mobile, for appellee.

SAYRE J.

Appellant sued to recover damages for the wrongful death of his minor son, alleged to have been caused while deceased was in the employment of defendant. Appellant did not sue as administrator, and necessarily his action, brought in his capacity as parent of the deceased, was under section 2485 of the Code, for an administrator alone can sue under the Employer's Liability Law, sections 3910-3912 of the Code whereas a parent, as such, is limited, in the case of his child's death, to an action under section 2485. Proceeding by virtue of section 2485, plaintiff could have no help from the...