Seagle v. Stith Coal Co.

• Decision Date: 06 June 1918
• Docket Number: 6 Div. 707
• Citation: 202 Ala. 3,79 So. 301
• Parties: SEAGLE v. STITH COAL CO.
• Court: Alabama Supreme Court

79 So. 301

202 Ala. 3

SEAGLE v. STITH COAL CO.

6 Div. 707

Supreme Court of Alabama

June 6, 1918

Rehearing Denied June 20, 1918

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by Howard Seagle against the Stith Coal Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Gardner and Thomas, JJ., dissenting.

Pinkney Scott, of Bessemer, and A.F. Fite, of Jasper, for appellant.

J.H Bankhead, Jr., of Jasper, for appellee.

SAYRE J.

It is evident that the effort in framing the fourth count of the complaint was to state a case under that clause of subsection 4 of the Employers' Liability Act, section 3910 of the Code, which makes the employer liable when the employé's injury is caused by reason of the act or omission of any person in the service or employment of the master or employer done or made in obedience to particular instructions given by any person delegated with the authority of the master or employer in that behalf. Appellant, plaintiff below, quotes Jackson Lumber Co. v. Courcey, 9 Ala.App. 488, 63 So. 749, to the effect that the clause in question subjects the employer to liability for an injury to his employé "without regard to the presence or absence of negligence in the instructions which were obeyed." And from this proposition of law--in connection with plaintiff's testimony tending to prove that he was injured by reason of having obeyed the particular instruction given him by one Dalton, a person delegated with the authority of defendant in that behalf, which obedience took him under the rock that fell upon and injured him--appellant draws the conclusion that the trial court erred in charging out the fourth count of his complaint.

The English prototype of this act expressly declared that the employé should not be entitled to compensation under this subsection "unless the injury resulted from some impropriety or defect in the rules bylaws, or instructions," and at section 1701 of 5 Labatt's Master and Servant (2d Ed.) it is said that:

"This proviso is not inserted in the American statutes but it is clear, both on principle and authority, that this noninsertion cannot be construed as having the effect of overruling the general rule that proof of negligence in respect to the subject-matter is a condition precedent to recovery in actions against the employer. The intention of the Legislatures is assumed to be that no liability can be predicated, unless the defendant is shown to have been culpable either in promulgating the rule in question, or in failing to promulgate a rule to meet the requirements of the case," and this we take to be sound law.

See, in this connection, Alabama Great Southern Ry. Co. v Cardwell, 171 Ala. 274, 55 So. 185.

Roberts and Wallace, Duty and Liability of Employers, 281, say of the clause under consideration:

"This part of the subsection involves consideration of the conduct of four persons--the employer, the person delegated with authority to give the instructions, the person acting in obedience to them, and lastly, the injured man. The employer may have authorized the delegate to give some definite instructions which he himself has specified, or generally to give some instructions; and those framed by the delegate himself in pursuance of his authorization will, equally with the former, come within the terms of this subsection. For these latter instructions the employer would not formerly have been liable, as the impropriety in them could not have been attributable to a personal breach of duty on his part, unless there had been negligence in the choice of the delegate. If the employer has himself definitely specified the instructions to be given by the delegate, the latter would be merely the moutpiece of the employer for conveying the improper instructions; and the negligence would be personal to the employer, for which he has always been responsible."

It thus appears that an improper or negligent instruction is essential to liability under this clause of the subsection. And it is further apparent that count 4 of the complaint inadequately stated a cause of action under the clause.

However, demurrer to count 4 was overruled, and while it has been thought well to make the foregoing statement of our consideration of that count, the action of the court in giving the general charge for defendant on that count as framed, and counts 3 and 5 as well, is to be approved on grounds that remain to be stated.

Count 4 alleges that the particular...