Sloss-Sheffield Steel & Iron Co. v. Weir

• Decision Date: 21 January 1913
• Citation: 179 Ala. 227,60 So. 851
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. WEIR.
• Court: Alabama Supreme Court

60 So. 851

179 Ala. 227

SLOSS-SHEFFIELD STEEL & IRON CO. v. WEIR.

Supreme Court of Alabama

January 21, 1913

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Wm. E. Weir, administrator of the estate of Willie Price deceased, against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Tillman Bradley & Morrow and L. C. Leadbeater, all of Birmingham, for appellant.

Bondurant & Smith, of Birmingham, for appellee.

DOWDELL C.J.

This is an action by Weir, as administrator of the estate of one Willie Price, for damages for the death of plaintiff's intestate from injuries received while at work as a convict in appellant's mine. From a judgment in favor of the plaintiff, this appeal is taken by the defendant company.

Appellant's first assignment of error is addressed to the overruling of the demurrer to the sixth count. This count, as amended, was in the following language: "Sixth Count. The plaintiff claims of the defendant the sum of $30,000 as damages, for that, whereas, heretofore, and on, to wit, the 8th day of December, 1908, the defendant was operating a coal mine at or near Flat Top, Jefferson county, Alabama, and on said day plaintiff's intestate was a convict, and was lawfully in the custody and under the control of the defendant, and on said day was being worked as such convict by defendant in its said mine, when rock, slate, or other hard substance fell upon plaintiff's intestate, so badly crushing and injuring him that he, on, to wit, the 8th day of December 1908, died as the proximate result of said injuries; hence this suit. And plaintiff avers that his said intestate was lawfully being worked in said mine, as aforesaid, in and about the business of the defendant; and that the death of his said intestate was proximately caused by reason of the negligence of defendant's agent or servant, one Casey, whose name is otherwise to the plaintiff unknown, while acting within the line and scope of his authority as such, in that he did negligently cause the said rock, slate, or other hard substance to be or remain loose or unsupported, or not sufficiently propped or braced, under which plaintiff's said intestate was being worked, as aforesaid, and because thereof some fell upon him, so badly bruising and injuring him that he died."

The only ground of demurrer which is insisted upon to this is: "It does not show that said servant or agent owed plaintiff's intestate the duty to prop or brace the rock."

It is not necessary to cite authorities to sustain the general proposition that every complaint for negligence must show a relation between the parties out of which arises a duty owing from the defendant to the plaintiff. While a complaint need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence. That much being shown, the averment that the defendant negligently failed to do and perform the act imposed by duty, or performed it in a negligent manner, sufficiently states a cause of complaint. These general rules of pleading are easily grasped and generally accepted, but some difficulty arises in their application to the varying language and averments of the many pleadings coming before the courts for construction and decision as to their sufficiency.

In support of its contention the appellant cites the case of United States Co. v. Driver, 162 Ala. 580, 50 So. 118. The averment of negligence in that case was: "And the plaintiff avers that he was hurt and damaged, as aforesaid, by reason of, and as a proximate consequence of, the negligence of defendant's master mechanic or foreman, Ed Niece, in this: Said Niece knew that the plaintiff was a boy without experience, and that said place was dangerous or hazardous for one of plaintiff's age and experience; but, notwithstanding said knowledge on the part of said Niece, he negligently failed to notify or instruct plaintiff of the danger incident thereto." It was held in that case that said count was subject to the demurrer, first, for the reason that if said count was drawn under the employer's liability act it failed to allege that the master mechanic had "any superintendence intrusted to him while in the exercise of such superintendence"; and second, if the complaint was based on the common law, the damages were claimed for the failure of such master mechanic to instruct the plaintiff as to the danger incident to the work, without alleging that the master mechanic was charged with that duty. It might be added that it does not appear from said count that the master mechanic was not a fellow servant; nor does it appear that he was a vice principal or alter ego of the defendant.

It will be observed that, under the facts postulated by the count here in question, the plaintiff's intestate was not a fellow servant. Being a convict, he was in involuntary servitude, with no power to refuse to enter upon the service, or to quit it. He was a prisoner in the custody of the defendant, as his keeper; and the defendant, while authorized to work him in the mine, owed him the duty of doing him no willful harm, and of exercising reasonable care for his personal safety. Whatever may have been the dangers of the service or the incompetency of the defendant's agents or servants, he had no option to quit. Thus the doctrine of assumption of risk from the negligence of fellow servants does not apply. "Wherefore, if the defendant, or any officer or servant of the defendant, acting within the scope of his employment, either willfully or negligently did the intestate an injury, the defendant was responsible therefor." Buckalew v. T. C., I. & R. Co., 112 Ala. 146, 20 So. 606; Sloss-Sheffield S. & I. Co. v. Long, 169 Ala. 337, 53 So. 910, Ann. Cas. 1912B, 564.

Nor are the averments of this sixth count so meager in other respects as were those in the U.S. Co. v. Driver Case, supra. In addition to averring that the plaintiff's intestate was a convict lawfully under the control of the defendant, and being worked by the defendant in its mine, in and about the defendant's business, at the time of his injury, it is further averred that his death was proximately caused by the negligence of defendant's agent or servant, Casey "while acting within the line and scope of his authority as such, in that he did negligently cause," etc. In the case of Sloss-Sheffield S. & I. Co. v. Long, 169 Ala. 337, 53 So. 910, Ann. Cas. 1912B, 564, the complaint avers that Cook, while acting within the scope of his employment, as a servant of the defendant, negligently ordered the plaintiff to hitch up a wild or untrained or dangerous mule to a coal car, etc. It was held that the averment that the servant Cook ...