Harris v. McNamara

• Decision Date: 24 November 1892
• Citation: 12 So. 103,97 Ala. 181
• Parties: HARRIS v. MCNAMARA ET AL.
• Court: Alabama Supreme Court

12 So. 103

97 Ala. 181

HARRIS v. MCNAMARA ET AL.

Supreme Court of Alabama

November 24, 1892

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Sarah Harris against McNamara Bros. to recover damages for the alleged wrongful killing of her son, who was a minor. From a judgment in defendants' favor, plaintiff appeals. Affirmed.

Lomax Pittman, for appellant.

J. Q Cohen, for appellees.

HEAD J.

At common law no action lies for the wrongful act or omission of a person, causing the death of another. Section 2588 of the Code of Alabama provides that "when the death of a minor child is caused by the wrongful act or omission or negligence of any person or persons or corporation, his or their servants or agents, the father, or the mother, in case of the death *** of the father, or the personal representative of such minor, may sue and recover such damages as the jury may assess." This action is by the mother of the deceased, Willie Harris, (the father being dead,) and is founded upon that statute. The particular act complained of is the negligent and wrongful employment by the appellees of appellant's minor son, Willie Harris, in a hazardous and dangerous business, without appellant's consent, and against her will, resulting in the son's death. The third count of the complaint was stricken out by amendment, and the case was tried upon issue joined on pleas to the first and second counts. The first count, in addition to the cause of action above mentioned, also alleges that the death was caused by the negligence of appellees' servants in operating a tram car used in the business in which deceased was employed, whereby the car ran over deceased, and killed him. This car, as the allegation is, was being used by appellees in their ore mines for carrying the ore out of the mines; the same being drawn into the mines by mules, and when loaded, allowed to descend therefrom by force of gravity. Deceased's duties were to go ahead of the car, so descending, for the purpose of turning the switch, when necessary, and signaling to the other servants in charge of the car to allow it to run out of the mines, and he was killed while in the performance of these duties, by and through the negligence of the servants operating it. We think these allegations give no cause of action. The negligence charged is but that of fellow servants. It matters not what the age of deceased was, or how wrongful his employment by reason of his age. The relation of master and servant existing by virtue of the employment, the rule as to the employer's liability for negligence of fellow servants is the same as in case of injuries to adults, similarly produced. King v. Railroad Co., 9 Cush. 112; Curran v. Manufacturing Co., 130 Mass. 374; Fones v. Phillips, 39 Ark. 17; Fisk v. Railroad Co., 72 Cal. 38, 13 P. 144; Rolling Mills Co. v Benson, 18 Ill.App. 194; Brown v. Maxwell, 6 Hill, 592. Mr. Beach, in his work on Contributory Negligence, (section 357,) criticises the doctrine of these cases on the ground, as he states the rule, that, minors having no power to make a contract, they are not bound by their express contracts with their employers, and hence no implied contract to assume the risks of injury from negligence of fellow servants can arise. But minors' contracts are not void. They are voidable, merely; and we think a plaintiff, whether the minor himself or another, by suing for an injury caused by some specific negligence committed in the course of the business, apart from the fact of employment itself, necessarily adopts, for the purposes of the action, the minor's voidable contract of employment and subjects himself to the same rules which govern in actions by or in right of adult employes. Original wrongful employment of a minor in a dangerous service furnishes, under proper allegations, a different and independent cause of action. In cases arising under our statute, known as the "Employers' Liability Act," which renders actionable against the employer the negligence of fellow servants in certain specified cases, the age of the injured party might be material in evidence to give character to the act of the servant charged as negligent, or exert an influence upon the question of contributory negligence, when that defense is interposed. The allegations of the present complaint, expressly made, or which could be supplied by reasonable intendment, do not make a case under that statute. Nor does it matter that the parent sues, instead of the injured party, in case of injury merely, or the personal representative in case of death. The basis of the action is the wrong done the injured party; and the right to redress that wrong, which the statute confers upon the parent in case of death, is not more enlarged than that which would belong to the deceased himself if death had not resulted, and he were suing for the personal injury. Beach, Contrib. Neg. § 132, and cases there cited. This leaves the appellant's case to rest alone, as stated in the outset of this opinion, upon the charge of wrongful employment meagerly set forth in the first, but more specifically in the second, count of the complaint.

The question of prime importance is whether there is evidence tending to show that deceased was employed by appellees. Their contention is that he was employed by, and was alone the servant of, one Dock Walton, who was an independent contractor, engaged in digging ore in their mines, and delivering it upon cars furnished by them in the mines at a fixed price per car. The bill of exceptions contains all the evidence on the subject, which is short, and substantially as follows: On the part of plaintiff, that deceased was employed to work at the Eureka mines, which were being operated by the defendants; that he was working under Dock Walton, a negro that Walton hired him at $1.50 per day; that deceased's duties were to act as collier for cars of Dock Walton. These duties required that he go in front of tram cars loaded with iron ore about to descend out of said mines, and turn the switches and call the cars. Dock Walton testified for plaintiff: "Last January I was working in the mines at Eureka,-for myself, I suppose. Mr. McNamara paid me. Willie Harris was working under me when he was killed. I turned in the time of Harris, and his name, the day he was killed, that they might know whom to pay the money to. Mr. Dave McNamara was our superintendent, and his...