Scoggins v. Atlantic & Gulf Portland Cement Co.

Decision Date14 November 1912
Citation179 Ala. 213,60 So. 175
CourtAlabama Supreme Court

Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge.

Action by Lee Scoggins, administrator, against the Atlantic & Gulf Portland Cement Company. From a judgment for defendant plaintiff appeals. Affirmed.

The first count alleges in substance that on the 6th day of August, 1909, the defendant was constructing its plant to be used by it in the manufacture of cement, and as a part of said plant the defendant had constructed a large building of lumber at its plant near Ragland, Ala., and that on said day while the plaintiff was in the service or employment of the defendant, and engaged in and about the said business of defendant, while under the veranda of said building, said veranda broke and gave way, and as a proximate consequence thereof crushed and otherwise injured plaintiff's intestate, so that he died, and his death was caused by a defect in the ways, works, plant, machinery, etc. The second count was like unto the first. The third count alleges that the veranda was so weak, insecure, and otherwise defective and was so negligently constructed by the defendant, who was the owner thereof, as to be insecure and unsafe. The fourth count alleges the negligent construction, with knowledge of such defect on the part of the defendant, and the allowing of it to remain in such condition. The sixth count alleges that at the time of said injuries on said day plaintiff was in the employment and service of the defendant on the premises, and was not a trespasser, with the allegation of injury as alleged in the fourth count. The pleas were contributory negligence, in that at the time of the injury plaintiff well knew, when he entered or sought shelter under said veranda the danger of this position as alleged in the complaint; that the pillars under same were only for temporary purposes, which was well known to plaintiff's intestate, or was such that a man of ordinary prudence and care would not have risked himself in such a position under the circumstances and conditions as alleged in the complaint. The tendencies of the evidence sufficiently appear from the opinion.

C. B. Powell, of Birmingham, for appellant.

Thomas J. Wingfield, of Birmingham, and James A. Embry, of Ashville, for appellee.


This action was brought by the appellant, against the appellee, under the Employer's Liability Act, to recover damages for the wrongful death of plaintiff's intestate.

Intestate was killed by the veranda of a clubhouse or boarding house falling upon him. He had gone under the veranda, of his own volition, with a friend--a brother-in-law of his--to take shelter from a rain. The veranda, at that time in process of construction, was not covered; but some planks or lumber which had been placed on the veranda to be used in the construction, formed a shelter from the rain. The veranda was only temporarily braced or propped. The deceased was not engaged in the work of building the veranda, but was employed, as foreman of a squad of men, in building a road near the place of the accident, and went there with his men only to get out of the rain. The men under him, and the carpenters who were engaged in work on the veranda, had gone into a tent, a servant's house, and a barn to get out of the rain. The deceased and his friends remained in these places for a while, for shelter, and then voluntarily retired to shelter under the veranda. The insecure condition of the veranda--that is, that it was only temporarily propped, and was then under process of construction--was perfectly obvious to the deceased; and the undisputed evidence is that he was warned of its condition and danger, but nevertheless heedlessly took the chances, and was killed in consequence of his own negligence.

The defendant corporation was engaged in the business of manufacturing cement. For this purpose it had contracted for the erection of a plant at Ragland, Ala. The evidence also shows that the contractor, one W. B. Shaffer, was erecting this clubhouse or boarding house 2 1/2 miles from Ragland, for the use of the employés and the officers of the company. While the evidence may be said to be in conflict as to whether this house, when completed, would be the property of the defendant, it is undisputed that it was being erected by Shaffer, and not by the defendant. The evidence undisputedly shows that Shaffer was either acting wholly for himself, or, as an independent contractor, for the defendant. The defendant did not own the surface right to the land upon which the house in question was being erected, but merely the mineral right thereto.

The trial court gave the affirmative charge for the defendant as to each count of the complaint upon which the trial was had. There was no evidence tending to show wanton negligence or willful injury. The pleas of contributory negligence were each sufficient, and were proven without conflict, and upon this theory the court correctly gave the affirmative charge for the defendant.

The action being under the Employer's Liability Act, it was of course incumbent on the plaintiff to allege and prove a case under that statute. The proof entirely failed, in that it did not show that deceased was an employé of the defendant; nor did any of the evidence show, or tend to show, that the defendant was liable for any wrongful act or any negligence which may have caused the death of plaintiff's intestate.

There being no evidence of any wantonness or willful act, on the part of any one, causing the death, and the undisputed evidence showing that intestate's own negligence proximately contributed to, or caused, his death, he, of course, could not recover. Even if it could be said that the work of building or repairing this house was being done for the defendant, it is without dispute that it was being done by an independent contractor.

Again, the work or undertaking being by no means necessarily dangerous, if proper care were exercised in its execution, any negligence in its prosecution (if any such there was) was merely in the mode and manner in which the contractor or his agents or servants were performing the work; and for this reason the defendant was not liable.

If it could be said that deceased was an employé of the defendant (but the evidence is overwhelming to the effect that he was not), the evidence is without dispute that he was not engaged in the master's service at the time of the injury; that he was under no duty or business obligation to be at the place of the injury, but was there by his own voluntary wish. But he was not engaged in that work, nor in any business of the master which rendered it necessary or proper for him to go under the veranda. There were other shelters at the place, shelters which were known to him, which he had used, and which he left voluntarily to assume, after being warned not to do so, the dangerous post in question. It would be little short of an outrage of justice to allow plaintiff to recover in this action, even upon his own evidence.

The law as to the liability of an independent contractor, and of the principal or owner, has been well stated by the English and American courts as follows: "Where the owner of premises employs an independent contractor for an operation to be performed on them, the contractor, and not the owner, is liable for damages arising from negligence of the workmen in carrying on the operation; but where a person engaged a contractor to perform a work which is in itself unlawful, and damage is caused by the operations, although carried out in a manner which, if the work were lawful, would be proper, the act causing the damage is considered as...

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    ...which arise through his active negligence. Pratt Coal and Iron Co. v. Davis & Davis, 79 Ala. 308; Scoggins v. Atlantic & Gulf Portland Cement Co., 179 Ala. 213, 60 So. 175; Alabama Great Southern R. Co. v. Campbell, 32 Ala.App. 348, 26 So.2d 124; Bryson v. Phelps, 23 Ala.App. 346, 125 So. 7......
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    ... ... Smith v. Hallock, 210 Ala ... 529, 98 So. 781; Scoggins v. Atlantic & G. P. Cement ... Co., 179 Ala. 213, 223, 60 ... 147; Adler v. Miller, 218 Ala. 674, ... 120 So. 153; Gulf Electric Co. v. Fried, 218 Ala ... 684, 691, 119 So. 685, ... ...
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