Lovell v. De Bardelaben Coal & Iron Co.

• Decision Date: 01 May 1890
• Citation: 7 So. 756,90 Ala. 13
• Court: Alabama Supreme Court
• Parties: LOVELL v. DE BARDELABEN COAL & IRON CO.

7 So. 756

90 Ala. 13

LOVELL v. DE BARDELABEN COAL & IRON CO.

Supreme Court of Alabama

May 1, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

The plaintiff sued for damages for injuries resulting in the death of his minor son while in the defendant's service alleged to have been caused by the negligence of a fellow-servant. A demurrer to the complaint was sustained on the ground that the action could be maintained by the personal representative only. The plaintiff appeals.

MCCLELLAN J.

If the employment of the plaintiff's minor son by the defendant was against the will of the former, his rights would thereby be made to appear in a more favorable light. The complaint alleges the employment, and is silent as to whether it was with or without the father's consent. In this absence of averment, a familiar rule of pleading requires us to construe the complaint most strongly against the plaintiff, and to hold that the contract of service was entered into by the son with the consent of the father. Moreover, the averment is that the defendant employed the minor. This, without more implies a legal employment, involving the parent's consent. Similarly, the complaint is silent as to the age of the son, further than that he was a minor. Hence it does not appear but that he was over the age of 14 years, from and after which period the prima facie presumption that he was capable of the exercise of judgment and discretion is indulged. Had he been under that age, the opposite presumption would be indulged, and might have had an important bearing, favorable to the plaintiff, on the claim for damages he now asserts. Coal & Iron Co. v Brawley, 83 Ala. 371, 3 South. Rep. 555. The proper observance of the rule adverted to above imposes on us the duty of reading the complaint as if it had averred the minor to be over the age of 14, as, had the fact been otherwise, we must assume it would have been so laid. City Council v Hughes, 65 Ala. 201.

The case presented, therefore, by the complaint, involves a contract, to which the father assented, made by the defendant with a minor "of sufficient discretion to comprehend and guard against the dangers of the employment, when fully explained to him." The authorities are uniform at common law to the proposition that, by such a contract, both the son and the father assume all the risks incident to the service, and that neither can recover against the employer for any injury resulting to the employe from the negligence of a co-employe in and about the common service. Hamilton v. Railway Co., 54 Tex. 556; Railway Co. v. Carlton, 15 Amer. & Eng. R. Cas. 350, note 355; Pennsylvania Co. v. Long, Id. 345; Greenwald v. Railroad Co., 13 N.W. 513; Railway Co. v. Byerle, 11 N.E. 6; 1 Shear & R. Neg. § 218.

Thus the question stands, and is settled, at the common law. Has the doctrine been modified by statutes in this state? Appellant insists that it has. Section 2588 of the Code is relied on, of its own force, and also in connection with what is known as the "employe's act," now constituting sections 2590 to 2593 of the Code, as authorizing a recovery by the father for injuries resulting in the death of his minor son, occasioned by the negligence of fellow-servants in an employment such as the complaint discloses. It is unnecessary, we think, to go into an exhaustive history of this legislation to arrive at a just interpretation of it. A brief résumé will suffice. At common law, and under our statutes prior to the passage of the act of January 23, 1885, the father in no case had a right of action for the killing of his child; a former attempt by the legislature to give him the right having aborted by reason of the unconstitutionality of the act passed to that end. Just prior to that attempt the act "to prevent homicides" had been enacted, giving to the personal representative of any person whose death was caused by the wrongful act or omission of another a right of action for the recovery of damages in all cases in which the deceased, had the injury fallen short of death, could have recovered. This act (now section 2589 of the Code) applied as well to infants as adults, but it did not and does not create any right of action in the father or mother. Conceiving, doubtless, that the parents of minors were entitled to their services absolutely during minority, and hence had a more direct and tangible interest in their lives than that to be subserved by a distribution of their estates, the general assembly attempted in 1872, and again, with success, in 1885, to allow the parents or personal representative to sue for a wrongful act causing the death of a minor. Acts 1884-85, p. 99; Code, §2588. The sole purpose and effect of this statute was to extend the right of action already lodged in the personal representative to the father, and in certain contingencies, to the mother. Its reference to the personal representative was necessary, on the one hand, to give the parents priority of right over him, and on the other to exclude a construction which might have defeated the representative's...