Postal Telegraph Cable Co. v. Hulsey

• Decision Date: 19 November 1901
• Citation: 31 So. 527,132 Ala. 444
• Parties: POSTAL TEL. CABLE CO. v. HULSEY. [1]
• Court: Alabama Supreme Court

31 So. 527

132 Ala. 444

POSTAL TEL. CABLE CO. v. HULSEY. ^[1]

Supreme Court of Alabama

November 19, 1901

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Robert T. Hulsey against the Postal Telegraph Cable Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. J Altman, J. M. Falkner, and Ray Rushton, for appellant.

Lane &amp White, for appellee.

HARALSON J.

1. This action, for personal injuries, was brought under subdivisions 2 and 3 of section 1 of the employer's liability act (Code, § 1749). On the former appeal (115 Ala. 193, 22 So 854) it was correctly said, "The complaint, in the first three counts, is upon subdivision two, and, in the fourth and fifth counts, upon subdivision three of the employer's liability act. The three counts in the first class, all show by proper averments, that one Frank A. Cobb was, within the meaning of the statute, intrusted with superintendence, and that the plaintiff's injury occurred by reason of negligence on his part, whilst in the exercise of such superintendence. They show that defendant was engaged in building or equipping a telegraph line, removing trees, erecting poles, wires, etc., and that plaintiff, an employé, was injured by a tree falling on him, in the prosecution of this work, under the superintendence of Cobb."

The court indulged a criticism of count 1, in that, although the count is expressly based upon the negligence of Cobb, in the exercise of superintendence, under the second subdivision of said act, yet the wrongful act charged, was the negligent giving of an order, for which subdivision 3 provides, without alleging that plaintiff was bound to conform to the order. To this count a general demurrer was interposed, the overruling of which, on that account, was here sustained, the court stating, that it would, "by the allowance of intendments, refer the negligence charged, to the second subdivision, under the general averment of negligence, in the exercise of superintendence." When the case returned to the city court, the count was amended, by striking out the averment of the wrongful act charged in the negligent giving of an order, as provided by said subdivision 3, to which plaintiff was bound to conform, and inserting in lieu thereof, that said Cobb "told plaintiff that he would watch for him, and let him know when it became necessary to leave the place where he was working, so as to avoid danger from the falling of said tree or trees, and said Cobb negligently failed to give plaintiff such notice; and plaintiff avers, that he went to chopping on said tree and continued to chop thereon, until it fell on him inflicting the injuries aforesaid," etc. This averment cured the defect for which the count was criticised by the court, and brought it within the provision of said section 2,--good against the demurrer interposed to it. Telegraph Co. v. Hulsey, supra.

2. The defendant's counsel in brief say, that the several counts of the complaint are so similar, and many of the grounds of demurrer being the same to each count, we submit what we "have to say on the demurrers as a whole." In other words, the assignments of error as to the overruling the demurrers to the several counts are not separately considered by counsel, but they urge the same objections to each. These grounds as grouped and urged are:

First. That it is not shown or averred in any of the counts, that there was any duty resting on the defendant, or on Cobb, to keep watch or to give warning or notice to plaintiff while so employed. This is a misconception of the statements of the several counts, which aver that Cobb, the superintendent, put plaintiff, who was subject to his instructions, to chopping upon a tree upon which another one had fallen and lodged, and when he put plaintiff to chopping, told him he would keep a lookout for him and give him notice when it would be necessary for him to leave, which he negligently failed to do, in consequence of which he was injured. Under such averments of facts, the duty to give the notice arose, as plainly as if it had been so averred. When the facts out of which a duty arose are averred, it is sufficient without averring the legal conclusion, that the duty existed. Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620.

Second. It is insisted on demurrer, that the counts in the complaint fail to show or aver with reasonable certainty, in what the negligence complained of consists. This is another misconception of the counts. They each show, that when Cobb put the plaintiff to cutting down the tree, on which another had lodged, he promised him he would watch the tree, and give him timely notice when it became necessary for him to leave off chopping and get out of harm's way; that Cobb failed to give such notice; that the tree gave way and leaned from its upright position, and allowed the lodged tree to fall on and injure plaintiff. This seems to be a very clear statement of the negligence complained of.

Third. Objection is made, that it does not appear by averment or otherwise, that the failure of Cobb to watch the tree, or to give warning or notice was the proximate cause of the injuries to plaintiff. It is submitted, however, that the counts, in so many words, set up the negligence of Cobb as the cause of the injuries.

Fourth. The fourth ground insisted on,--that the danger of chopping on the tree was as patent to plaintiff as to Cobb or any one else,--is without merit. The counts do not show such a fact, assumed in the objection, to be true. The promise of Cobb to keep watch and give warning when to flee from danger, negatives the assumption, that the danger was as obvious to plaintiff as to Cobb. The very fact that it was not so obvious to plaintiff as to Cobb, gave rise to Cobb's promise to keep watch and give warning.

Fifth. The fifth objection is, that it is not shown, in the fifth count, that there was any superintendence vested in Cobb; that it fails to show any negligence in Cobb, in ordering plaintiff to chop the trees, "and fails to show he is not a fellow servant." These objections are in plain contradiction of the averments of this count, which states that plaintiff was an employé of defendant; that Cobb was in the service and employment of defendant, and was foreman or superintendent, having in charge or superintendence, the plaintiff and the other hands working in connection with him, and also that he had charge and superintendence over the felling and cutting of trees along defendant's said line, which said superintendence had been intrusted to him by the defendant, and like the other counts, avers the negligence of Cobb, and the facts constituting the negligence.

There was no error in overruling the demurrers to the several counts of the complaint. Telegraph Co. v. Hulsey, supra.

3. Pleas "a," "b," and "c" are the general issue. A demurrer, as shown by the judgment entry, was sustained to plea "e," but the demurrer is not set out in the transcript. When this is the case, the appellate court will presume some ground of demurrer was specifically assigned; and if the plea is bad, in order to sustain the ruling, the court will presume that the grounds of demurrer showing the vices of the plea were specifically assigned, and the ruling sustaining the demurrer will be sustained. Hodge v. Tufts, 115 Ala. 366, 22 So. 422.

It is manifest the plea is bad. The fact that there was obvious danger in chopping on the tree, and that plaintiff assumed the risk of so chopping, is not a full answer to the complaint which avers, that plaintiff was put to chopping on the tree by his superintendent, Cobb, on the promise of the latter, "that he would watch for him, and let him know when it became necessary for him to leave the place where he was working, so as to avoid danger from the falling of said tree or trees, and said Cobb negligently failed to give plaintiff such notice," etc. The plaintiff might have known there was danger to chop and fell the tree, with another lodged on it, which might fall on and injure him, when the standing tree began to lean and fall, unless some one watched to give him notice when it began to do so; but with the promise on the part of the superintendent, who directed him to fell the standing tree, that he would stand guard and watch for him, and give him notice when to escape the danger, he might well have been induced thereby to assume the apparent risk, with assurance that he could safely escape, if his superintendent faithfully fulfilled his promise. As stated, the plea does not answer the entire complaint, and presented an imperfect issue thereon.

The case was tried on the pleas of the general issue and on issue joined on pleas "d" and "f." The last are pleas of contributory negligence of the plaintiff, and counsel for defense state that they are substantially the same. Plea "d" sets up, "that while cutting down a tree on which a part of the weight of two other trees were resting, and when the tree on which he had been cutting, gave indications of falling, the plaintiff negligently moved in the direction in which one of the trees was leaning, so that said trees fell on him, when by moving in another direction, he would have been safe from injury, and defendant avers that by so moving in the direction in which said tree was leaning, he placed himself in danger, and by so moving, he negligently contributed, as defendant avers, proximately to his own injury."

It is insisted that the facts of this plea were proved without conflict in the evidence, which justified the giving of the affirmative charge asked by defendant and refused. Two facts are averred, however, to say nothing more, which refute this proposition. It is averred in the plea, that...