Pennsylvania Coal Co. v. Bowen

• Decision Date: 15 April 1909
• Parties: PENNSYLVANIA COAL CO. v. BOWEN.
• Court: Alabama Supreme Court

49 So. 305

159 Ala. 165

PENNSYLVANIA COAL CO. v. BOWEN.

Supreme Court of Alabama

April 15, 1909

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by Robert E. Bowen against the Pennsylvania Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint contained a number of counts. The third count is in the following language: "Plaintiff claims of defendant the Pennsylvania Coal Company, a corporation, $2,000 as damages, for that on, to wit, the 14th day of August, 1905 the plaintiff was an employé of the defendant, and was working in a coal mine in Walker county, Ala., and whilst in said employment certain rock or slate fell upon plaintiff and injured his back and body, and the injuries to his back and body are permanent, and it also injured his legs and arms and said injuries are permanent, and as a proximate consequence thereof plaintiff lost valuable time, and incurred large doctor's bills and bills for nurse hire, and suffered great pain, both physical and mental. And plaintiff alleges that it was the duty of defendant to employ as fellow servants of the plaintiff men who are reasonably skilled in and about the duties they were to perform, who were competent, and who were careful; but the defendant violated its duty to plaintiff in this respect, and negligently employed and placed in the same room with plaintiff one Martin Sharrat, who was not reasonably skilled in the duties he was to perform, or who was incompetent or careless. And plaintiff alleges that, as a proximate result of said employment of the said Martin Sharrat as alleged, he received the injuries above set out; and hence this suit." The demurrers are sufficiently stated in the opinion. The following charges were refused to defendant: (1) "If the jury believe the evidence, it cannot find for the plaintiff under the third count." (3) "The court charges you that you cannot find for plaintiff under count 14 on account of the failure to furnish him timbers." (5) The general affirmative charge as to the fourteenth count.

Bankhead & Bankhead, for appellant.

Leith & Gunn, for appellee.

SIMPSON J.

This is an action brought by the appellee against the appellant to recover damages for an injury received by the plaintiff while working in the coal mine of the defendant. The first assignment insisted on is to the action of the court in overruling the demurrer to the third count of the complaint. Said third count claims that the injury was received as the result of certain rocks or slate falling on the plaintiff. It is alleged that "it was the duty of the defendant to employ, as fellow servants of the plaintiff, men who were reasonably skilled in and about the duties they were to perform, who were competent, and who were careful; but the defendant violated its duty to plaintiff in this respect, and negligently employed and placed in the same room with the plaintiff one Martin Sharrat, who was not reasonably skilled in the duties he was to perform, or who was incompetent and careless," and "as a proximate result of such employment of said Martin Sharrat, as alleged, he received the injuries above set out."

The law is that in order to recover against the master, on account of the employment of incompetent servants, it must be shown that the master knew of the incompetency of said servant, or by the exercise of reasonable diligence could have ascertained that fact. 1 Labatt, Master & Servant, pp. 418, 419, § 193a; Bailey's Master's Liability for Injuries to Servants pp. 48-50; 26 Cyc. 1298, 1299; First Nat. Bank v. Chandler, 144 Ala. 286, 308, 39 So. 822, 113 Am. St. Rep. 39. It is also laid down, as a general proposition, that the complainant must allege that the master knew of the incompetency, or by the exercise of reasonable care could have known; but it is not necessary that those exact words should be used. Under the general trend of our own and other decisions, we hold that the allegations in this complaint, that the "defendant violated its duty in this respect and negligently employed," etc., are a sufficient compliance with this requirement. 26 Cyc. 1393, 1394; Galveston Rope & Twine Co. v. Burkett, 2 Tex. Civ. App. 308, 21 S.W. 958. While the case of A. G. S. R. R. Co. v. Vail, 142 Ala. 135, 38 So. 124, 110 Am. St. Rep. 23, is not strictly analogous, as the complaint there was for not furnishing a sufficient number of men to...