Osborne v. May

• Decision Date: 10 March 1960
• Docket Number: 6 Div. 53
• Citation: 270 Ala. 327,119 So.2d 230
• Court: Alabama Supreme Court
• Parties: Leroy OSBORNE, d/b/a Osborne & Company Truck Lines, v. Audrey MAY, Adm'x.

Page 230

119 So.2d 230

270 Ala. 327

Leroy OSBORNE, d/b/a Osborne & Company Truck Lines, v. Audrey MAY, Adm'x.

6 Div. 53.

Supreme Court of Alabama.

March 10, 1960.

Jackson, Rives, Pettus & Peterson and T. M. Conway, Jr., Birmingham, for appellant.

Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellee. The amended complaint is as follows:

'The plaintiff claims of the defendants Fifty Thousand Dollars as damages for that heretofore on, to-wit: the 24th day of October, 1951, plaintiff's said intestate, Paul Johnson May, deceased, was an employee of all the defendants, except the defendant American Cast Iron Pipe Company, a corporation, and as such employee was driving an automobile tractor and trailer along or upon a public highway in Shelby County, Alabama, as and which he had a right to do, and which said highway was that paved highway commonly known as Alabama Highway No. 91, and which was that paved highway which runs between and connects Mountain Brook, Alabama, and Childersburg, Alabama, and at a place on said highway about, to-wit: between 20 and 25 miles in a southerly direction from Birmingham, Alabama; and plaintiff avers that at said time and place said vehicle became unmanageable and uncontrollable by plaintiff's said intestate and was thereby caused to run off of said highway and against an embankment adjacent to said highway and plaintiff's said intestate was thrown from said vehicle and was run over by said vehicle and killed.

'The plaintiff alleges that said vehicle at said time and place was owned by, or was under the control of, and was being operated under the direction of, the defendants named herein with the exception of the defendant American Cast Iron Pipe Company; the plaintiff further avers that said vehicle was being operated by said defendants herein named except the defendant, American Cast Iron Pipe Company, while engaged in interstate commerce, as a common carrier of freight for hire or reward in interstate commerce, and at said time and place said vehicle was transporting for hire or reward as said common carrier of freight a load or quantity of cast iron pipe, each piece of which pipe was approximately, to-wit: eighth inches in diameter and approximately, to-wit: 16 1/3 feet in length and cylindrical in shape, all of which said pipe was loaded on the trailer of said vehicle without sufficient bedding, substance or means thereunder to hold and keep said pipe in the place where it was placed in said trailer, and which said pipe was so insecurely, insufficiently, improperly and unsafely placed or fastened or secured or bedded down on said trailer as to render the said pipe easily movable and likely to shift about from place to place on said trailer from the mere motion of said trailer when and while said trailer was being moved or carried up and down inclines on said highway, or in any direction other than a straight line, thereby rendering the movement of said vehicle unmanageable and uncontrollable by the driver thereof under these conditions; and the plaintiff avers that said pipe, which was so on said trailer at said time and place, was placed and loaded on said trailer by defendant, American Cast Iron Pipe Company for and preparatory to said trip, which said vehicle was being used for at said time and place, to be transported from Birmingham, Alabama, to Columbus, Georgia, and for the purpose of being carried by means of said tractor and trailer from Birmingham, Alabama, to Columbus, Georgia, said pipe having been purchased or secured from said defendant, American Cast Iron Pipe Company for said shipment or movement; and plaintiff avers that it then and there became and was the duty of the defendants to exercise and use due and reasonable care and diligence to load or place said pipe, or to ascertain that said pipe was loaded and placed, on said trailer in a safe and proper manner for transportation on said trailer. The plaintiff avers that while said pipe was being so transported by means of said automotive vehicle at said time and place herein stated, and over said highway on which was many hills and inclines and curves, a great portion of said load of pipe suddenly moved or shifted its position on said trailer and said vehicle was thereby rendered unmanageable and uncontrollable by plaintiff's said intestate, and was caused to run off of said highway and plaintiff's said intestate, Paul Johnson May, now deceased, was thrown from said truck and killed as aforesaid, as a proximate consequence of the negligence of the defendants, in that the defendants negligently failed to exercise or use due and reasonable care in and about the loading of said pipe, or the inspection of said loading of such pipe on said trailer, in that the said defendants negligently caused or negligently allowed said pipe so loaded on said trailer to become or remain improperly, insufficiently, and unsafely secured or fastened or bedded down on said trailer as aforesaid.'

This suit is brought and filed in a court of competent jurisdiction within two years after the death of plaintiff's said intestate.

The following charges were refused to appellant:

'11. The court charges the jury that Mr. Johnson, the driver of the tractor and trailer in question at the time it was taken to American Cast Iron Pipe Company and loaded with the pipe in question, was a fellow servant of the plaintiff's intestate, for whose negligence the defendant, Leroy Osborne, doing business as Osborne & Company Truck Lines, is not liable; and if you are reasonably satisfied from the evidence in this case that the said Mr. Johnson was negligent in and about the loading of said trailer or in and about the securing of the load on said trailer, and that such negligence, if any, was the proximate cause of the injuries which resulted in the death of the plaintiff's intestate, then you cannot return a verdict in favor of the plaintiff and against the defendant Leroy Osborne, doing business as Osborne & Company Truck Lines.

28. The court charges the jury that if you are reasonably satisfied from the evidence that the accident complained of was of an unusual character and one which could not be reasonably anticipated by the use of ordinary care, then you cannot return a verdict in favor of the plaintiff and against the defendant Leroy Osborne, doing business as Osborne & Company Truck Lines.'

MERRILL, Justice.

This case was originally assigned to another member of the court, and was reassigned to the writer on February 8, 1960.

Appellee, plaintiff below, sued as administratrix for the wrongful death of her husband, Pual Johnson May, deceased, while he was driving a tractor-trailer on a public highway between Mountain Brook and Childersburg, at or near Westover, twenty-five miles south of Birmingham.

The original defendants were American Cast Iron Pipe Company, hereinafter called Acipco, Arrow Truck Line, and the appellant, Leroy Osborne, d/b/a Osborne & Company Truck Lines.

The complaint, as last amended, consisted of one count, alleging in substance that the deceased was an employee of both Arrow and Osborne, and that at the time of his death, he was driving a tractor-trailer on an interstate trip for Arrow and Osborne, common carriers of freight for hire in interstate commerce. The truck was carrying cast iron pipe loaded thereon by Acipco. The complaint charged that the three defendants negligently caused or negligently allowed the pipe so loaded to become or remain improperly, insufficiently and unsafely secured or fastened or bedded down on the trailer; that the pipe suddenlymoved or shifted, rendering the vehicle unmanageable, causing it to run off the highway, throwing the deceased from the truck and his death resulted.

Demurrers being overruled, the pleadings were in short by consent. At the conclusion of the oral charge to the jury, the court gave the general charge in favor of Arrow. The jury returned a verdict in favor of Arrow and Acipco, but against appellant Osborne, for $15,000. Appellant's motion for a new trial was overruled.

Appellant argues 15 of the 129 assignments of error. The first and sixty-fourth complain that the court erred in overruling the demurrer to the complaint, as amended.

The complaint, as amended, will be set out by the reporter. Appellant insists that it does not show a duty owed by appellant to his employee. We think the complaint amply shows a relationship of master and servant and that appellee's intestate was engaged in the master's business when he met his death. These averments showing such relationship were sufficient to impose the duty upon the master to provide a safe place to work and safe appliances under the common law. In Huyck v. McNerney, 163 Ala. 244, 50 So. 926, 928, this court said:

'The first count is not drawn to declare a liability under the liability act. It is for a breach of the common-law duty in respect to furnishing instrumentalities employed in the business of the master. 1 Labatt, §§ 22a, 23, and notes; Ryan v. Miller, 12 Daly, N.Y., 77. It is sufficient in its general averments--practically conclusions--of negligence. Laughran v. Brewer, 113 Ala. 509, 21 So. 415, among many others.'

In Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426, 428, we said:

'* * * Under our system of pleading, the averment that the master negligently failed to furnish or provide a reasonably safe place to work is sufficient, and the most general allegation of default therein is permissible. Birmingham Ry., Light & Power Co. v. Buff, 201 Ala. 94, 77 So. 388; Ragland Brick Co. v. Bell, 197 Ala. 14, 72 So. 380; Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 So. 199; Smith v. Watkins & Donelson, 172 Ala. 502, 55 So. 611; Gray Eagle Coal Co. v. Lewis, 161 Ala. 415, 49 So. 859.'

We conclude that the demurrer was properly overruled.

Assignment 41 charges error in the court's refusal to give the affirmative charge with hypothesis for the appellant.

The tendencies...