Pure Oil Co. v. Cooper

• Decision Date: 16 May 1946
• Docket Number: 6 Div. 438.
• Citation: 26 So.2d 249,248 Ala. 58
• Parties: PURE OIL CO. v. COOPER.
• Court: Alabama Supreme Court

26 So.2d 249

248 Ala. 58

PURE OIL CO. v. COOPER.

6 Div. 438.

Supreme Court of Alabama

May 16, 1946

Rehearing Denied June 13, 1946.

London & Yancey and Chas. W. Greer, all of Birmingham, for appellant.

Francis H. Hare, of Birmingham, for appellee.

The following charges were refused to defendant:

'4. I charge you, Gentlemen of the Jury, that if you believe the evidence in this case you cannot find a verdict in favor of the plaintiff and against the defendant The Pure Oil Company, a corporation, under count two of the complaint as amended.'

'6-C. I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence in this case that Mr O' Rourke did not cause or negligently allow the said lid on the dome on said tank car to be or to become or to remain insecurely fastened and in danger of falling off while en route on said trip so as to allow gasoline to be splashed or thrown out of said tank car, I then charge you that you cannot find a verdict in favor of the plaintiff and against the defendants.'

'11-C. I charge you, Gentlemen of the jury, that if, after you have considered all of the evidence in this case, you are not reasonably satisfied therefrom that J. S. Kuffskie was guilty of negligence, and that his negligence proximately caused plaintiff's injury and damages, you cannot find a verdict in favor of the plaintiff and against the defendants J. S Kuffskie and The Pure Oil Company.'

'2. I charge you, Gentlemen of the Jury, that if you believe the evidence in this case you cannot find a verdict of the plaintiff and against the defendant, The Pure Oil Company, a corporation.'

'19-C. I charge you, Gentlemen of the Jury, that in his complaint in this case the plaintiff has alleged that J. S. Kuffskie and The Pure Oil Company were guilty of negligence, and I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence that J. S. Kuffskie was not guilty of negligence, which proximately caused the plaintiff's injury and damages, you cannot find a verdict in favor of the plaintiff and against J. S. Kuffskie or The Pure Oil Company.'

BROWN Justice.

This is an action on the case by the appellee Cooper against appellant The Pure Oil Company, a corporation, and J. S. Kuffskie, and was tried on count two of the amended complaint, filed on November 5, 1945, and the plea of the general issue, filed in short by consent, with leave to give in evidence any matter which would constitute a defense to the action.

The jury returned the following verdict: 'We the jury find for the plaintiff and against the defendant, The Pure Oil Company and assess the plaintiff's damages at Twelve Thousand Five Hundred & no/100 ($12,500.00) Dollars.' Judgment against The Pure Oil Company was entered, and J. S. Kuffskie was ordered to 'go hence without day.' The Pure Oil Company has appealed.

The plaintiff at the time of his injury was a brakeman in the employ of the Alabama Great Southern Railroad Company, and was engaged in the line of his duty, aiding in switching cars at York, Alabama, among others a tank car of ethyl gasoline, which was loaded by the appellant at its plant in Mobile, Alabama, and put in transit through the state dock terminal at Mobile, delivered by it to the A. T. & N. Ry. Co., to be carried by said last named company to York, Alabama, and there delivered to its connecting carrier, the Alabama Great Southern Ry. Co.

The complaint alleges in substance that while said tank car was being switched at York, Alabama, by the Alabama Great Southern, the cap or top came off of the dome of said gasoline tank, in consequence of which gasoline from said tank was sloshed or thrown upon the plaintiff's head, face, in his eyes and over his body, from which he suffered personal injury and damages causing a partial loss of the sight of one eye, suffered mental pain and anguish, and other damages, specially claimed in the complaint.

The complaint as a matter of inducement avers that: 'Said railroad tank car in which said gasoline was being hauled, was under lease at said time from said Union Tank Car Company to the defendant, The Pure Oil Company, a corporation, for the purpose of transporting gasoline therein, over said railroads; and the defendant, J. L. Kuffskie was the employee, who alone or with another employee, of the defendant, The Pure Oil Company, a corporation, inspected and fastened the top lid or cap of said tank car for said shipment as aforesaid; * * *.' [Italics supplied.]

Following these averments of inducement, the complaint charges that plaintiff 'suffered all of said wounds, injuries, damages and losses as a proximate consequence and result of the negligence of the defendants in that the defendants when they delivered said tank car of gasoline to said common carrier as aforesaid, negligently caused or negligently allowed the said top lid or cap of said tank car to be or become or remain insecurely fastened and in danger of falling off while en route on said trip, so as to allow gasoline to be splashed or thrown out of said tank car, and as a proximate consequence of said negligence of defendants the said top lid or cap did, on the occasion of plaintiff's injury as aforesaid, come or remain off, thereby proximately causing said gasoline to be splashed or thrown upon plaintiff and plaintiff to suffer the injuries and damage herein averred and claimed.'

"In actions based on misfeasance or non-feasance, the rule, as settled by our decisions, is that, when the complaint avers the facts from which the duty arises, a general averment of negligence is sufficient under our system of pleading. The pleader is not required to specify the particular acts or omissions, from which the conclusion of negligence is deducible.' Mobile & Ohio R. Co. v. George, 94 Ala. 199(214), 10 So. 145, 150; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73, and cases cited supporting the second headnote, pp. 35, 36, and p. 75 respectively.

'Nevertheless when the injury or loss results from active force applied and arises under the doctrine respondeat superior, the rules of good pleading require that, the complaint by way of inducement show the instrumentality causing the injury, and that the agent or servant to whose acts negligence is ascribed had actual manual control of such instrumentality or was present directing its movement. Doullut & Williams v. Hoffman, supra, and other authorities cited supra; Graham v. Werfel, 229 Ala. 385, 157 So. 201; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Strickland v. Davis, 221 Ala. 247, 128 So. 233; Burns v. Blythwood, 236 Ala. 639, 184 So. 349.' Smith et al. v. Tripp, 246 Ala. 421, 20 So.2d 870, 871.

The charge in said count is based on misfeasance, and while to hold the defendant Kuffskie liable it was necessary for the plaintiff to show, that he as an agent or servant of defendant and in the line of duty participated in the act of placing the cap on the dome of the tank car such participation by Kuffskie was not essential to the liability of the defendant, The Pure Oil Company, if O'Rourke was present and acting for said defendant, in that respect, and was negligent in respect to inspecting and fastening the cap on the dome of said tank car, or if Stadther was negligent in respect to inspecting and sealing the same before releasing it for transit over the connecting railway. It is not necessary that there should be an exact...