Munson S.S. Line v. Harrison

• Decision Date: 21 June 1917
• Docket Number: 1 Div. 957
• Parties: MUNSON S.S. LINE v. HARRISON.
• Court: Alabama Supreme Court

76 So. 446

200 Ala. 504

MUNSON S.S. LINE v. HARRISON.

1 Div. 957

Supreme Court of Alabama

June 21, 1917

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Eugenia Harrison, as administratrix, against the Munson Steamship Line, for damages for the death of her intestate while in the employment of defendant. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Lyons &amp Courtney, of Mobile, for appellant.

Alex Howard, of Mobile, for appellee.

On the Motion to Strike the Bill of Exceptions.

MAYFIELD J.

We are of the opinion that the bill of exceptions should not be stricken in this case. The facts agreed to show a right to have the bill established by a member of this court, as provided by section 3022 of the Code, as amended by the act of the Legislature of 1915 (Acts 1915, pp. 816-817). The mere fact that it is possible to have the bill settled and signed by the trial judge does not prevent the party from having the bill settled and signed by a member of this court, if the facts are shown to exist authorizing a judge of this court to take such action. If a litigant desirous to present to the trial judge a bill of exceptions cannot, by the exercise of reasonable diligence, find that official, because of his absence from the city or county in which he would be found but for absence, and the litigant does not know, or with reasonable diligence cannot ascertain, when the judge will return so that he may present his bill of exceptions, he is not required to wait for the return of such absent judge until the last possible day during which he can present his bill before applying to a member of this court to settle and sign his bill.

On the other hand, it was never intended by the statute as amended that a party may apply to a a member of this court, or to the court, to settle and establish a bill of exceptions merely because he did not find the trial judge when or where, at his discretion, he looked for him, and when, with due care and diligence, he could have found the trial judge at his usual known place of business, or at his residence, or at some other place where his duties might reasonably require him to be. It was obviously not the intent of the statute to give the party the option of applying either to the trial judge, or to a member of this court, to settle and sign his bill of exceptions, but only to give him the right to apply to a member of this court when the facts exist, and are shown, which the statute mentions, as conferring the right. And we think such facts were shown in this case.

The reporter will set out the facts as agreed upon, touching the presentation of this bill to a judge of this court.

On the Merits.

The action is against the master or employer to recover damages for the wrongful death of the servant or employé. Some of the counts ascribe the wrongful death alleged to breaches of the common-law duties of the master to provide the servant a reasonably safe place in which to work, and to use reasonable diligence to properly light the premises wherein the servant is required to perform his services. Other counts charge negligence to a superintendent, under the second subdivision of the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U.S.Comp.St.1916, §§ 8657-8665]). The defendant interposed a number of special pleas of contributory negligence and assumption of risk on the part of the deceased. The trial resulted in verdict and judgment for the plaintiff, and the defendant appeals.

There is no merit in the contention that the counts declaring on the common-law duties were defective, in that they imposed a higher degree of care, prudence, and responsibility on the master than the law imposed; that is to say, that they made the duty of the master to furnish a safe place in which to work, and to provide a light, an absolute duty, with the result to constitute the master an insurer of the servant in these particulars, whereas the master is responsible merely to exercise reasonable diligence, under all the circumstances, to provide a reasonably safe place wherein his servant may work, and sufficiently light the premises wherein his servant is required to work at night. Neither of the counts was subject to the objections held to be well taken in the Merriweather Case, 161 Ala. 441, 49 So. 916, or in Huyck's Case, 163 Ala. 244, 50 So. 926, or in Triplett's Case, 177 Ala. 258, 58 South.

108. The counts in question are nearer like the counts considered in Stewart's Case, 172 Ala. 516, 55 So. 785. The counts in question do not allege an absolute duty on the part of the defendant to provide a safe place or to properly light the premises, but only the duty to exercise reasonable care and diligence to provide a safe place or proper lights. It is true that this duty is not so stated or charged in terms, but it is so stated in legal effect, the allegation being:

"It was then and there the duty of the defendant to use reasonable care to furnish proper lights for the performance of said work, and plaintiff avers that the defendant negligently failed to provide such proper lights."

This is quite different from the allegation in the Merriweather Case, which in effect charged the duty to be absolute to furnish a safe place, and not merely to use reasonable care to provide a safe place.

This cause must be reversed, however, because of the failure of the proof to establish the material allegations of these counts which charged a breach of the common-law duty of the master. If there be any evidence to show negligence that would support a recovery, it is of negligence in the failure to maintain a safe place or to properly light and keep lights burning, and not evidence of negligence in the failure to originally provide a safe place or to install a proper system of lights. The negligence alleged was that of the master himself, his failure to use reasonable care to provide a safe place or to properly light the premises; while the only tendency of the evidence was to show negligence of some agent or servant of the defendant in not keeping the place or plant safe, or not keeping the lights burning. But there was no evidence to show negligence on the part of the master in employing or retaining in his service such agent. Under the law of this state, which is well established, the duty to originally provide a safe place and a light or system of lights to illuminate the premises is a duty which the master cannot delegate to his agent or servant; whereas the duty of maintaining the reasonably safe condition and the lights is delegable. L. & N.R.R. Co. v. Andrews, 171 Ala. 200 54 So. 553; Standard Co. v....