Smith v. Pioneer Min. & Mfg. Co.

• Decision Date: 12 June 1906
• Citation: 41 So. 475,146 Ala. 234
• Parties: SMITH v. PIONEER MIN. & MFG. CO.
• Court: Alabama Supreme Court

41 So. 475

146 Ala. 234

SMITH v. PIONEER MIN. & MFG. CO.

Supreme Court of Alabama

June 12, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Ed Smith against the Pioneer Mining & Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This was a suit for damages for personal injury, brought by appellant against appellee. The complaint is as follows "Plaintiff claims of the defendant the sum of $5,000 as damages, for that heretofore, to wit, on the 17th day of February, 1903, the defendant corporation was engaged in the business of running and operating a furnace at Thomas, in Jefferson county, Ala., and on said day and date aforesaid the plaintiff was in the employ of defendant and engaged in the work of carrying cinders and drying a trough of defendant, which the plaintiff had washed with clay under direct orders of defendant's superintendent, to wit, one Bob Blair; and while the plaintiff was so engaged in the regular discharge of his duty plaintiff was injured by the pouring or spilling of hot cinders on his left ankle and left foot, whereby he was permanently injured, was made sore and sick, and suffered great mental and physical pain, and was put to great expense and inconvenience in and about his efforts to heal said wound and injuries. And plaintiff avers that the aforesaid injuries were caused by reason and as a proximate consequence of the negligence of a person in the employment of defendant, to wit, Bob Blair, who was intrusted by the defendant with superintendence; said negligence of said superintendent occurring whilst in the exercise of such superintendence as follows: Whilst said Bob Blair was superintending the washing and drying of a trough or troughs of defendant, he, the said Bob Blair, negligently ran over or against the plaintiff and spilled hot cinders in plaintiff's shoe and on his left ankle and left foot whilst plaintiff was engaged as aforesaid, and injuring plaintiff as aforesaid--all to plaintiff's great damage in the sum of $5,000 as aforesaid. Hence this suit." There were demurrers to the complaint, which were overruled pleas of contributory negligence, to which demurrers were interposed and overruled, and the general issue. The evidence tended to show that the plaintiff (appellant) was engaged in helping others dry out said troughs for the purpose of properly running the molten pig from the furnace into pigs. These troughs were of sand wetted for the purpose of properly shaping them, and they had to be dried before running the molten iron into them. This drying process was done by placing in them hot slag, and the slag was obtained from the slag pile near the troughs, by means of small ladles with handles. The plaintiff was using one of these at the time of the injury. Blair was foreman of the drying gang, and, as one of his gang had quit work, he was using a ladle assisting to dry out the sand, when he spilled some of the contents of his ladle, hot slag, upon plaintiff's foot. It was shown that this was not his usual and ordinary employment, but that he was doing this manual labor to fill in at that time. The court gave the affirmative charge for the defendant.

A. O Lane and R. L. Leatherwood, for appellant.

Campbell & Walker, for appellee.

WEAKLEY C.J.

To create a liability under subdivision 2 of section 1749 of the Code of 1896 (section 2590, Code 1886), it is not sufficient merely to show that the injury was caused by reason of the negligence of a person in the service or employment of the master or employer who had superintendence intrusted to him but it must also appear that the negligence occurred whilst the offending employé was in the exercise of such superintendence. This is the plain requirement of the statute. If it were held to be enough to constitute a cause of action to show that a superintendent had been negligent, without reference to the nature and character of the act he was performing when the negligence occurred, then the effect would be to read the last clause of subdivision 2 out of the statute and give it no field of operation. "The negligence must be that of some agent or employé who is in the exercise of superintendence, and to whose negligence in such exercise the disaster is traced." Drennen v. Smith, 115 Ala. 396, 22 So. 442. In Dantzler v. De Bardelaben Coal & Iron Co., 101 Ala. 309, 14 So. 10, 22 L. R. A. 361, it was contended by the plaintiff that under one phase of the evidence the negligent employé, who had set the engine in motion, was a superintendent, in that he had the direction of his helper, and from this circumstance liability was sought to be imposed upon the defendant. But in response to this contention the court said (page...