Marbury Lumber Co. v. Heinege

• Decision Date: 05 February 1920
• Docket Number: 3 Div. 417
• Citation: 204 Ala. 241,85 So. 453
• Parties: MARBURY LUMBER CO. v. HEINEGE.
• Court: Alabama Supreme Court

85 So. 453

204 Ala. 241

MARBURY LUMBER CO. v. HEINEGE.

3 Div. 417

Supreme Court of Alabama

February 5, 1920

Rehearing Denied May 20, 1920

Appeal from Circuit Court, Autauga County; Gaston Gunter, Judge.

Action by Mary Heinege, as administratrix, against the Marbury Lumber Company, for damages for the death of her intestate while in the employment of the defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

Rushton Williams & Crenshaw, of Montgomery, and N.D. Denson & Sons of Opelika, for appellant.

Hill, Hill, Whiting & Thomas and Eugene Ballard, all of Montgomery, and P.E. Alexander, of Prattville, for appellee.

ANDERSON C.J.

This case was submitted to the jury upon counts B and E. They are under subdivision 2 of section 3910 of the Code of 1907, and are, for all practical purposes, identical, except that one charges the negligence to Superintendent Davis while the other ascribes the negligence to an unknown superintendent. These counts under our system of pleading sufficiently set forth the relationship of the parties, the duty owing from the one to the other, the nature and character of the work, and the cause of the intestate's death proximately resulting from the negligence of the defendant's superintendent in failing to furnish or provide sufficient appliances for supporting or bracing the platform or structure while the work was being done, and that the negligence occurred while in the exercise of such superintendence, etc. While there were several grounds of demurrer interposed, the chief one relied upon by appellant's counsel is No. 7, challenging the failure of the counts to specify the character or kind of appliances that should have been furnished for bracing or supporting the platform or structure. We do not think that this specific averment was necessary to make the counts good. L. & N.R.R. Co. v. Jones, 130 Ala. 456, 30 So. 586; Williamson Iron Co. v. McQueen, 144 Ala. 265, 40 So. 306; Tenn. Co. v. Moore, 194 Ala. 138, 69 So. 540, and numerous cases there cited. The trial court did not, therefore, err in overruling defendant's demurrer to these counts.

The trial court did not err in permitting the witness Holland to testify that Charlie Davis was in charge of the work, or that he got his orders from said Davis, and that Davis gave the orders and directions to the men. Nor will the trial court be put in error in permitting the said witness to testify that Mr. Davis was superintendent, as there was no objection to the question or the answer. There had been a previous objection which was sustained as to who was superintendent, but when the question was repeated in a slightly different form there was no objection to the question or answer. Moreover, this court has held that a witness may testify as to who had superintendence over him under the rules of the master. Choctaw Co. v. Moore, 184 Ala. 449, 63 So. 558.

The trial court did not err in permitting this witness Holland to testify as to the sufficiency of the props, or as to how the structure should have been braced or propped. The witness had previously testified that he had been a carpenter for eight or ten years, and the trial court evidently found that he was an expert, and which finding will not be revised by this court. Ala. Consol. Co. v. Heald, 168 Ala. 626, 53 So. 162. The witness being an expert could give his opinion as to the unsafety of the platform and as to how it could have been made...