Reiter-Conley Mfg. Co. v. Hamlin

• Decision Date: 01 February 1906
• Citation: Reiter-Conley Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280 (Ala. 1906)
• Parties: REITER-CONLEY MFG. CO. v. HAMLIN.
• Court: Alabama Supreme Court

40 So. 280

144 Ala. 192

REITER-CONLEY MFG. CO. v. HAMLIN.

Supreme Court of Alabama

February 1, 1906

Appeal from City Court of Gadsden; John H. Disque, Judge.

"To be officially reported."

Action by L. E. Hamlin, administrator of the estate of James Williams, deceased, against the Reiter-Conley Manufacturing Company.From a judgment for plaintiff, defendant appeals.Reversed.

This is an action for damages on account of the death of appellee's intestate, who was an employé of appellant and the original complaint contained six counts.Demurrers were sustained to all of these counts, and the complaint was amended by filing an amended count No. 5 and adding counts 7 8, and 9.Demurrers were interposed to the amended complaint and sustained to all the counts except 5 and 9, and overruled as to these.The complaint was further amended by adding counts 10, 11, and 12.Demurrers were filed to these last counts, and the demurrers overruled.Counts 5 and 11 were abandoned, and the cause was tried on counts 9, 10, and 12.

The ninth count was in the following words: "The plaintiff who sues as the administrator of the estate of James Williams, deceased, claims of the defendant corporation the further sum of $10,000 as damages for the negligent killing of plaintiff's intestate in Etowah county, Ala., on, to wit, September 1, 1903; and plaintiff avers that at and prior to the time of said killing his intestate was in the employ of defendant corporation, and was engaged in the performance of his duties as such employé of defendant corporation, and the injury complained of was caused by reason of the negligence of one Al Reiter, a person in the service or employment of defendant, who had superintendence intrusted to him and while in the exercise of such superintendence.Said negligence complained of consisted in this: That said Al Reiter, while in the exercise of such superintendence negligently caused a chain to be slackened while plaintiff's intestate, in discharge of his duties, was under a block which was held by the pressure of said chain, whereby the block was loosened and fell upon plaintiff's intestate and killed him."

Count 10 was in the following words: "Plaintiff, who sues as the administrator of the estate of James Williams, deceased, claims of the defendant corporation the further sum of $10,000 as damages for the negligent killing of plaintiff's intestate by defendant in Etowah county, Ala., on, to wit, September 1, 1903; and plaintiff avers that at and prior to the happening of the injuries complained of plaintiff's intestate was in the service or employ of defendant corporation, and was engaged in the performance of his duties as such employé of defendant corporation, and the injury complained of was caused by reason of the act of some person in the service or employment of defendant corporation in slackening a chain while plaintiff's intestate in the discharge of his duties was under a block, which was held by the pressure of said chain, whereby the block was loosened and fell upon plaintiff's intestate and killed him; and plaintiff avers that said act of slackening said chain as aforesaid was done in obedience to particular instructions to slacken said chain, negligently given by one Al Reiter, a person delegated with the authority of the defendant in that behalf."

Count 12: "Plaintiff, who sues as the administrator of the estate of James Williams, deceased, claims of the defendant corporation the further sum of $10,000 as damages for the negligent killing of plaintiff's intestate by defendant in Etowah county, Ala., on, to wit, September 1, 1903.And plaintiff avers that at and prior to the happening of the injuries complained of plaintiff's intestate was in the employ of defendant corporation and was engaged in the performance of his duties as such employé of defendant corporation; that under his employment it became the duty of plaintiff's intestate to set an anchor bolt at the base of a steel or iron column, for the purpose of holding said column in its erect position; that in the erection of said column a block of wood had been fastened thereto by the pressure of a chain which was used in the erection of said column; that said block of wood was held in its place and prevented from falling only by the pressure of said chain; that Al Reiter, a person in the service or employment of defendant corporation, had superintendence intrusted to him by the defendant over the erection of said column and over the work being done by plaintiff's intestate; that said block was placed directly over plaintiff's intestate; that the performance of the duties of plaintiff's intestate required his attention; that plaintiff's intestate was in a position where the slackening of said chain would unfasten said block and cause the same to fall upon plaintiff's intestate; that the danger that said block would fall upon plaintiff's intestate and injure him, if the chain was slackened, was well known to said Reiter, or by the exercise of reasonable diligence should have been known to him; that it was the duty of said Reiter in the exercise of his superintendence to use reasonable diligence to prevent the slackening of said chain; and that said Reiter in the exercise of said superintendence negligently failed to exercise reasonable care to prevent the slackening of said chain, and negligently allowed said chain to be slackened, whereby said block was loosened and fell on plaintiff's intestate, and killed him.And plaintiff avers that said injury proximately resulted from the negligence of said Al Reiter in the exercise of said superintendence, in that he negligently failed to exercise reasonable care to prevent the slackening of said chain, and negligently allowed said chain to be slackened, whereby intestate was injured and killed."

Defendant demurred to the ninth count, and assigned the following grounds: "(1) For that it fails to give the name of the person who loosened the chain.(2) For that it does not appear that the block fell as a result of the chain being loosened.(3) For that it does not appear that the chain was used to hold the block in place.(4) For that it does not state facts showing that the chain held said block and that the loosening the chain caused the block to fall.(5) For that it is not made to appear that Al Reiter had any reason to believe that the slackening of the chain would cause or allow the block to fall.(6) For that from aught that appears the chain was not used to hold the block in position, and that Al Reiter had no reason to believe that the slackening of the chain would cause or allow the block to fall.(7) For that it fails to state the alleged particular instructions of Al Reiter.(8) For that from aught that appears Al Reiter gave only such instructions as were necessary in the performance of the work that he and the plaintiff's intestate were engaged in, all of which was well known and understood at the time plaintiff's intestate accepted such service, and that therefore the dangers he encountered were incident to such employment.(9) For that it shows that the injury complained of was caused by the act of a fellow servant.(10) For that it fails to show that Al Reiter had authority to give the alleged particular instructions.(11) For that it fails to show the relation of master and servant between plaintiff's intestate and defendant, except by a mere conclusion.(12) For that it fails to show that plaintiff's intestate had a contract of service with the defendant.(13) For that it fails to show that plaintiff's intestate was engaged in the performance of his duties as such employé when he was killed, except as a mere conclusion."

Demurrers to tenth count: "(1) For that it does not appear who slackened the chain.(2) For that it does not appear that Al Reiter was in the employ of defendant.(3) For that the alleged particular instructions are not stated.(4) For that from aught that appears plaintiff's intestate heard said alleged particular instructions.(5) For that it does not appear that the alleged negligent instructions were the proximate cause of the injury.(6) For that the facts constituting the negligence are not stated."

Demurrers to twelfth count: "(1) For that it does not appear that Al Reiter's superintendence extended to seeing that said chain securely fastened said block.(2) For that it does not appear that Al Reiter failed to exercise reasonable care and diligence to prevent said block from falling.(3) For that it does not appear that said Al Reiter failed to exercise reasonable care and diligence to secure said block.(4) For that it does not appear that said Al Reiter failed to exercise reasonable care and diligence to prevent said chain from slackening.(5) For that it does not appear that by the exercise of reasonable care and diligence Al Reiter could have prevented said chain from slackening.(6) For that it does not appear that said chain was slackened by the negligence of said Al Reiter, (7) For that it does not appear what caused said chain to slacken.(8) For that it does not appear that Al Reiter superintended the fastening of said block by said chain in the erection of said iron column.(9) For that the causal connection between the alleged negligence and the injury is not shown.(10) For that it appears that the plaintiff's intestate had the same opportunity of ascertaining the condition of said chain and block as Al Reiter."

The defendant filed the following pleas: The first and second were the general issue.Plea 3: "For further plea in this behalf, defendant says that plaintiff's intestate was guilty of contributory negligence which proximately contributed to his injury, in that he stood immediately under said block at a place where it would likely strike...