J. H. Burton & Sons Co. v. May

Decision Date22 January 1925
Docket Number1 Div. 312
Citation103 So. 46,212 Ala. 435
PartiesJ.H. BURTON & SONS CO. v. MAY.
CourtAlabama Supreme Court

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action for damages for sinking a barge by Charles L. May against the J.H. Burton & Sons Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Outlaw & Kilborn, of Mobile, for appellant.

Smiths Young, Leigh & Johnston, of Mobile, for appellee.


There are many assignments of error which will be treated in the order of the arguments thereon.

The overruling of demurrer to count 5 of the complaint is urged as error. It is argued that the count attempts to allege the quo modo of negligence; that the facts alleged are insufficient; and that it does not allege that damage was the proximate result of the negligence charged.

The necessity and requirements of appropriate pleading are well understood, have often been discussed, and need not be repeated. Dwight Mfg. Co. v. Holmes, 198 Ala. 590 73 So. 933, and authorities; B.R., L. & P. Co. v Littleton, 201 Ala. 141, 77 So. 565; Alabama F. & I. Co. v. Bush, 204 Ala. 658, 86 So. 541; B.R., L. & P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304; A.F. & S.F.R. Co. v. Rice, 36 Kan. 593, 600, 14 P. 229; Wills' Gould on Pleading, pp. 2, 3, 192, 361.

The allegations of negligence contained in said count were sufficient from the facts or act specified--the removing of a large part of the lumber from one side of the barge without removing any considerable part of that cargo from the other side, and resting "one end of a large part of the lumber so removed upon the side of the barge from which no lumber had been removed, which said method of unloading placed too great a weight upon one side of said barge and was an improper method of unloading said barge," and an "uneven distribution of the weight of lumber" which "caused the said barge to break, collapse, and sink to the plaintiff's damage as aforesaid." (Italics supplied.) The facts thus alleged constituted negligence as a matter of law. Dwight Mfg. Co. v. Holmes, 198 Ala. 599, 73 So. 933. Moreover, the court understood the effect of the count, as we have indicated, and charged the jury that it was not sufficient that plaintiff prove that the barge was unevenly unloaded, but that plaintiff must further prove that such method of unloading was negligently done. There was no reversible error in overruling demurrer on this ground. Jackson v. Vaughn, 204 Ala. 542, 86 So. 469; Sov. Camp. v. Ward, 201 Ala. 446, 78 So. 824; Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas. 1917D, 929; Taylor v. Lewis, 206 Ala. 338, 89 So. 581; Fulton v. Watts, 209 Ala. 408, 96 So. 184; Clayton v. Jordan, 209 Ala. 334, 96 So. 260.

To authorize a recovery under said count the averment must be sufficient to show the injury complained of was proximately caused by the negligence averred--such uneven distribution of the weight of the lumber in an improper unloading that caused the barge to "collapse and sink to the plaintiff's damage as aforesaid." This was a sufficient averment of proximate cause, as efficacious as if the words "proximate cause" had been employed by the pleader. L. & N.R.R. Co. v. Kelly, 198 Ala. 648, 73 So. 953; Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77; Southern Car & Foundry Co. v. Bartlett, 137 Ala. 234, 34 So. 20; Tabb v. Zieman (Ala.App.) 100 So. 562. When the complaint as a whole is considered, as it must be, the full significance of the words employed is the averment of a proximate cause. Alabama Power Co. v. Stogner, 208 Ala. 666, 95 So. 151. That is, the method of unloading the lumber from the barge was averred to be improper and negligent, and that the same was the proximate cause of the collapse of the barge and the injury sustained. That, in short, was the obvious effect of the pleading. There was no error in overruling the demurrer on the last-stated ground.

The sustaining of demurrer to pleas A, B, and C, seeking to plead the general rule obtaining in the state courts of contributory negligence in bar of a recovery, is assigned as error, and is insisted upon in the argument of counsel. The substance of pleas A and B is that it was the duty of the owner to furnish a seaworthy barge for the transportation of his lumber to defendant's wharf and place of business; that this duty was not observed; and that by reason of his contributory negligence in this behalf his injury for which complaint is made was sustained. It is the law that, where an owner of a vessel charters her or offers her for affreightment, he is in duty bound to see that she is seaworthy and suitable for the services in which she is contracted to be employed. Work v. Leathers, 97 U.S. 379, 24 L.Ed. 1012; The R. & O. Nav. Co. v. The Boston, etc., Co., 136 U.S. 408, 10 S.Ct. 934, 34 L.Ed. 398; The Bradley Fertilizer Co. v. Lavender, 14 S.Ct. 823, 153 U.S. 199, 38 L.Ed. 688; The Caledonia, 157 U.S. 124, 15 S.Ct. 537, 39 L.Ed. 644; The Bullard (C.C.A.) 287 F. 674. If the failure of said duty on plaintiff's part was the proximate cause of the collapse and sinking of the barge and of his consequent damage, that defense was available in proper pleas under the rule that obtains in this jurisdiction. The rule in this state has been given frequent application. Central Ry. & Banking Co. v. Letcher, 69 Ala. 100, 44 Am.Rep. 505; So. Ry. Co. v. Morgan, 171 Ala. 294, 54 So. 626; L. & N.R.R. Co. v. Dilburn, 178 Ala. 600, 59 So. 438.

We need not further observe that the contributory negligence pleaded must be the proximate cause of the injury, or a concurring proximate cause thereof. McCaa v. Thomas, 207 Ala. 211, 214, 92 So. 414; Owners of Steamboat Farmer v. McCraw, 26 Ala. 189, 72 Am.Dec. 718; Reaves v. Anniston Knitting Mills, 154 Ala. 566, 45 So. 702; Garrett v. L. & N.R. Co., 196 Ala. 52, 71 So. 685; L. & N.R.R. Co. v. Sullivan Timber Co., 138 Ala. 379, 35 So. 372; M. & O.R.R. Co. v. Christian Moerlein Brewing Co., 146 Ala. 404, 41 So. 17; Ray v. Brannan, 196 Ala. 113, 72 So. 16; Conecuh Naval Stores Co. v. Castillow, 209 Ala. 271, 96 So. 142. The pleas A and B correctly set up contributory negligence under the rule obtaining in this state. So, also, did plea C as to the contributory negligence set up by reason of the improper manner of making fast the barge at defendant's wharf or place for the conduct of the business of unloading said cargo of lumber.

We may next inquire if the pleadings under consideration show that the injury was a maritime tort--whether it was sustained by virtue of a maritime contract (Ex parte Havard, 100 So. 897) or occurred in navigable waters, or in the doing of a maritime act or service. If so, is the award of damages for the tort complained of, and for which suit is brought in a common law court, to be subject to the contributory negligence rule obtaining in the state courts, or the comparative negligence rule obtaining in admiralty?

A claim in a state court in an action for a maritime tort committed upon navigable waters and within the admiralty jurisdiction of a right under the federal statute presents a federal question, and that jurisdiction cannot be restrained by the mere fact that the party plaintiff has elected to pursue his common-law remedy in a state court. On the authority of Atlee v. Northwestern Union Packet Co., 88 U.S. (Wall.) 389, 22 L.Ed. 619, it was held that, if both vessels are culpable in respect of operating, etc., neither can ecover damages for injuries so caused. Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218. However, by the later cases it has been held by the Supreme Court of the United States that the general rules of maritime law apply to suits for maritime torts brought in the common-law courts of the United States (Carlisle Pack Co. v. Ole Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Chelentis v. Luckenbach, etc., Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Knickerbocker, etc., Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145; South. Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L.R.A. 1918C. 451, Ann.Cas. 1917E, 900), and that every species of tort, however occurring and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance (Atlantic Trans. Co. v. Imbrovek, 234 U.S. 52, 32 S.Ct. 835, 56 L.Ed. 1263, 58 L.Ed. 1208, 1212, s.c. 51 L.R.A. [ N.S.] 1157, note), or is of common-law cognizance within the jurisdiction saved "to suitors in all cases (where) the right of a common-law remedy (exists) when the common law is competent to give it." South. Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed 1086, 1099, L.R.A. 1918C, 451, Ann.Cas. 1917E, 900; Steamer Max Morris v. Curry, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed 586, 589. In Chelentis v. Luckenbach Steamship Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed 1171, 1176, the court said, of the saving clause of the act of Congress (saving to the suitor the right of a common-law remedy, where the common law is competent to give it) that "a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law"; and it was declared "but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the maritime law *** without regard to the court where he might ask relief, petitioner's rights were those recognized by the law of the sea." Judicial Code, §§ 24, 256 (36 Stat. at L. 1091, 1160, c. 231 [Comp.Stat.1916, § 991, 1233]).

This ruling was adhered to in Carlisle Pack. Co. v. Ole Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed 927, 930.

If therefore, a suit for...

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