McNeil v. Munson S.S. Line

• Decision Date: 01 May 1913
• Citation: 62 So. 459,8 Ala.App. 610
• Parties: McNEIL v. MUNSON S.S. LINE.
• Court: Alabama Court of Appeals

62 So. 459

8 Ala.App. 610

McNEIL v. MUNSON S.S. LINE.

Court of Appeals of Alabama

May 1, 1913

Rehearing Denied June 6, 1913

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Albert McNeil against the Munson Steamship Line for injuries while engaged in its employment. Judgment for defendant, and plaintiff appeals. Affirmed.

The facts sufficiently appear from the opinion. Charge 17 is as follows: "The court charges the jury that the fact of plaintiff's injury does not of itself give him a right of recovery. To recover the plaintiff must show that the defendant was guilty of a breach of some duty that it owed plaintiff. If the jury believe from the evidence that defendant was not guilty of a breach of any duty owing to plaintiff, but that the injury to plaintiff was the result of an accident or misadventure, then plaintiff cannot recover."

"(19) The court charges the jury that if they believe from the evidence that the deck of the steamship on which plaintiff was at work was in itself a safe place to work when properly used, and that a condition of unsafety or danger was produced by reason of matters and things done by the defendant's employés in the course of their work, and that it was from this unsafety or danger that plaintiff was injured, then plaintiff cannot recover under the second count of the amended complaint, if the jury further believe from the evidence that plaintiff was himself an employé of defendant and engaged with other employés in performing the same service of loading the ship."

Leslie B. Sheldon and Rich & Hamilton, all of Mobile, for appellant.

Pillans, Hanaw & Pillans, of Mobile, for appellee.

PELHAM, J.

Plaintiff (appellant) originally set up his cause of action in a complaint containing five counts, and each count declared on relied upon the relation of master and servant existing between the defendant and plaintiff. The first count alleged a breach of the common-law obligation of the master to furnish the servant a safe place to work. The second count was under subdivision 2 of the Employer's Liability Act (Code, § 3910). The third count was under subdivision 3 of the same act. The fourth count charged a wanton or intentional wrong under subdivision 2; and the fifth count was framed under subdivision 3, charging a wanton or intentional injury. Demurrers to the first, fourth, and fifth counts, based on the ground principally, it seems, that these counts contained alternative averments rendering them demurrable, were sustained by the court, and the plaintiff filed an amended complaint containing 13 counts. In these 13 counts, as finally amended, to which demurrers were interposed but overruled, the plaintiff set up every matter declared on in the original complaint.

These counts splitting up the alternative averments contained in the same counts of the original complaint and setting them out in different counts of the amended complaint entailed no additional burden on the plaintiff in presenting his case on the trial; and, as they contained every averment declared on originally in the complaint filed by him and permitted the plaintiff to present every phase of his case without additional burden, the ruling of the court on the demurrers to the original complaint, if error, would be without injury, and a discussion of the assignments of error based on these rulings is unnecessary. Carleton v. C. of Ga. Ry. Co., 155 Ala. 326, 46 So 495, 16 Ann.Cas. 445.

The appellee insists that a consideration of the whole case will show that the plaintiff was not entitled to recover, and that, as the court would have been justified in giving the general charge for the defendant, any errors committed in the progress of the trial would not be prejudicial or authorize a reversal of the case. This contention of the appellee is based on the proposition that, as each count of the plaintiff's complaint relies on the relation of master and servant as existing between the parties at the time of the injury, there could be no recovery in that the undisputed evidence shows such a relation did not exist.

It appears from the evidence set out in the bill of exceptions that the defendant was engaged in the shipping business operating a line of vessels carrying freight to and from the port of Mobile, and that, while a load of lumber in cars on the wharf was being loaded aboard one of the defendant's steamships lying alongside a pier in the city of Mobile, the plaintiff, who was engaged at his duties on the deck of the steamer as a longshoreman in assisting in loading the cargo of lumber, was injured by being struck with a piece of timber that was being hoisted on board. The plaintiff was employed to perform the services at which he was engaged when injured in the following manner, and under the following circumstances: One Captain Erickson, who was the superintendent of loading for defendant company at Mobile, had under him a white foreman that employed or "picked up" a colored foreman, that in turn employed or "picked up" the men that formed the gangs that loaded the ships. The plaintiff was employed or engaged in the manner or way above described, by the colored foreman, to do the work at which he was occupied when injured, and constituted one of the gang loading a particular ship, the Trafalgar, on the occasion in question. Neither the white foreman nor the colored foreman is shown to be an independent contractor, but both were employés of the defendant company charged by it under the terms of their employment with the performance of certain duties respectively. The white foreman, it will be seen, employed the colored foreman, and this latter foreman hired a designated number of men to do a certain work and was charged with the duty of seeing that they performed the services for which they were employed. The colored foreman selected the men to do the work, and they were under his immediate orders while performing the duties for which they were employed, and this foreman was also the person who discharged the laborers thus engaged and was the one to whom they went for permission to do so when they wished to "knock off." The services of these men employed by the foreman were paid for by the defendant company, through its cashier, at the office of the general manager directly to the men. There was no conflict in the evidence that the defendant's superintendent, Captain Erickson, and the white foreman, one Bonneau, employed the negro foreman Lynch, and instructed him, in this particular instance, to get a gang to do the work, and that Lynch did get up the gang for this purpose, and that the plaintiff was one of the gang gotten up in this way.

The evidence, we think, establishes the relation of master and servant between the defendant and the plaintiff. The superintendent, Erickson, and the foreman, Bonneau, both had the right to give, and in actual practice and fact did give directions and orders to the colored foreman, Lynch, who was under their control and direction, and through whom they had the power to control the selection and discharge of the men picked up by Lynch, who was not an independent contractor, but an employé of the defendant, having authority as part of his duties to employ and discharge workmen; and in performing this service he was acting for the master, his employer, in the nature of a vice principal. A.G.S.R.R. Co. v. Vail, 142 Ala. 134, 38 So. 124, 110 Am.St.Rep. 23; Smith v. Pioneer Mining & Mfg. Co., 146 Ala. 234, 41 So. 475; L. & N.R.R. Co. v. Lile, 154 Ala. 556, 45 So. 699.

Nothing that is said in the Alabama cases cited by the appellee in the least militates against our position as above stated. What is said in those cases as to what does and what does not establish the...