Hubbard v. Coffin & Leake

• Decision Date: 07 November 1914
• Docket Number: 604
• Citation: 67 So. 697,191 Ala. 494
• Parties: HUBBARD v. COFFIN & LEAKE.
• Court: Alabama Supreme Court

67 So. 697

191 Ala. 494

HUBBARD v. COFFIN & LEAKE.

No. 604

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Talladega; Cecil Browne, Judge.

Action by Dora Hubbard, administratrix, against Coffin & Leake receivers. From judgment for defendants, plaintiff appeals. Affirmed.

Knox Acker, Dixon & Sims, of Talladega, for appellant.

Riddle Ellis & Riddle, of Columbia, for appellees.

SAYRE J.

Appellant, suing as administratrix for damages on account of the alleged wrongful death of her intestate while in the employment of defendants, stated her cause of action in several counts under the Employers' Liability Act, adding a count under the common law for the employers' failure to use due care in furnishing her intestate with a safe place in which to do the work for which he was employed. To recover, it was necessary, of course, that plaintiff should show that her intestate was at the time of his injury, resulting in death, a servant or employé in the service of defendants. The general issue pleaded contained a denial of this essential fact.

Defendants as receivers of the Alabama Consolidated Coal & Iron Company, were engaged in the surface mining of iron ore and had been taking ore from a pit or cut which had been excavated to a depth of 10 or 12 feet over an area some 15 or 20 feet across. A day or two after intestate went to work in this pit the wall or bank out of which he was taking ore fell upon him causing his death. We find the facts, touching upon the relation between intestate and defendants and established beyond any reasonable inference otherwise, to be that intestate had contracted with defendants to get out ore for them, to be delivered at the washers at a fixed price per ton. Intestate employed and paid his own help and furnished his own tools, wagons, and teams. Defendants assigned him to work in this cut, and their superintendent inspected the output to see that it did not contain too much dirt; but they did not say, nor does it appear that they reserved the right to say, at just what point in the pit or how in any respect intestate should conduct his operations. It was, however, expected--no doubt, required--that he should be diligent, and defendants' superintendent gave some attention to this feature of his operations, but this had effect only upon the quantum of output not the means or agencies employed to produce it. From these facts it follows, we think,...