Maddox v. Chilton Warehouse & Mfg. Co.

• Citation: 55 So. 93,171 Ala. 216
• Parties: MADDOX v. CHILTON WAREHOUSE & MFG. CO.
• Decision Date: 20 April 1911
• Court: Supreme Court of Alabama

55 So. 93

171 Ala. 216

MADDOX v. CHILTON WAREHOUSE & MFG. CO.

Supreme Court of Alabama

April 20, 1911

Appeal from Circuit Court, Chilton County; W. W. Pearson, Judge.

Action by J. A. Maddox against the Chilton Warehouse & Manufacturing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The substance of count 1 is set out in the complaint, as is the substance of counts 2 and 3. Plea 6 is as follows: "As an answer to count 1, defendant says that the plaintiff in this action was, at the time he suffered the injury complained of, the agent of the defendant intrusted with the duty of seeing that the gin, which it is alleged in said count was defective, was in a proper condition, and that plaintiff undertook to perform such duty." Plea 7 "That the plaintiff in this action was, at the time he suffered the injuries complained of, the agent of the defendant intrusted with the duty of seeing that the gin which it is alleged in said count was defective was in proper condition, and plaintiff undertook to perform such duty, and at the time the plaintiff received the alleged injury he was the superintendent of said gin, which it is alleged was defective, and had full charge of the said gin, and was not subject to the control of any one so far as the operation of said gin was concerned." Plea 8: "As an answer to count 2, the defendant says that plaintiff in this action was, at the time he suffered the injuries complained of, the agent of the defendant intrusted with the duty of seeing that the gin, which it is alleged in said count was defective, was in proper condition, and that said plaintiff undertook to perform such duty." Plea 9: "As an answer to the second count, defendant says that the plaintiff in this action, at the time he suffered the injuries complained of was the agent of the defendant intrusted with the duty of seeing that the gin, which it is alleged in said count was defective, was in proper condition, and that said plaintiff undertook to perform such duties, and at the time plaintiff received the alleged injury he was the superintendent of said gin, which it is alleged was defective, and had full charge of the said gin, and was not subject to the control of any one so far as the operation of said gin was concerned."

The following charges were given for the defendant: (5) "The court charges the jury that if they believe from the evidence that the plaintiff contracted with the defendant to take entire charge of the ginning department of the defendant, and to keep up the machinery of the gin of the defendant including the gin by which plaintiff was hurt, they must find for the defendant." (6) "The court charges the jury that, unless the jury are reasonably satisfied by a preponderance of the evidence that the injury of the plaintiff was caused by the negligence of the defendant or some one of its agents or servants, they must find for the defendant."

Perdue & Cox and J. O. Middleton, for appellant.

William A. Collier, for appellee.

SOMERVILLE J.

The complaint is for an injury to plaintiff's hand and arm suffered while operating a cotton gin for the defendant company. The first count is framed under subdivision 1 of the employer's liability act (Code 1907, § 3910), and charges a defect in the gin; while the second, third, and fourth counts are framed under subdivision 2, and charge the negligence of a servant of defendant who was intrusted with superintendence. The second and fourth designate T. P. McElderry, and the third G. T. McElderry, as such superintending servant.

1. In order to recover under the first count, the plaintiff was, of course, bound to prove its averment that "the said defect arose from or had not been discovered or remedied owing to the negligence of said defendant or employer, or of some person intrusted by defendant with the duty of seeing that the ways, works and machinery or plant of said defendant were in proper condition." Columbus & Western R. Co. v. Bradford, 86 Ala. 580, 6 So. 90. As a defense to this count the defendant answered by plea 6 that at the time of the injury complained of the plaintiff himself was the agent who was intrusted by defendant with the duty of seeing that the gin alleged to be defective was in proper condition, and that plaintiff undertook to perform such duty. Thus the language of the plea in connection with the language of the complaint shows that the master was by contract specifically relieved of the duty, otherwise owed to the servant, of furnishing him with machinery safe for operation by him, and under such a contract the servant could not look to the master to discharge a duty that was devolved upon himself, but must be held to have assumed the risk of injury incident to the operation of the gin if not put in a proper condition.

The theory of the complaint is that reasonable care on the part of the master would have discovered the alleged defect; and if such was its character as thus predicated, the plea need not allege that the defect would have been discovered by the plaintiff had he discharged his duty, nor that the plaintiff was negligent in the discharge of his duty, for it must be conclusively presumed that he would have discovered it. Nor is it necessary to allege in specific terms that the alleged...