St. Louis & S.F.R. Co. v. Brantley

• Citation: 53 So. 305,168 Ala. 579
• Parties: ST. LOUIS & S. F. R. CO. v. BRANTLEY.
• Decision Date: 06 July 1910
• Court: Supreme Court of Alabama

53 So. 305

168 Ala. 579

ST. LOUIS & S. F. R. CO. v. BRANTLEY.

Supreme Court of Alabama

July 6, 1910

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action for injuries by Joseph Brantley against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sayre and Simpson, JJ., dissenting in part.

Campbell & Johnston, for appellant.

Jere C King, for appellee.

SAYRE J.

Count 1 of the complaint is not so blindly general in its allegation of negligence as the argument for appellant would indicate. A fair reading of it shows a charge that defendant's superintendent, Dorman, while in the exercise of superintendence, and while plaintiff was engaged in helping to unload a heavy piece of machinery from a car over skids or long pieces of timber negligently caused or allowed one of said skids or pieces of timber to break, thus causing the piece of machinery to fall upon plaintiff to his injury. The averment of superintendence intrusted to Dorman implied his duty to care for plaintiff's safety as affected by the use of the skids or timbers, and under a long line of decisions in this state fairly and sufficiently apprised the defendant of the nature and cause of the action it was summoned to defend. Williamson Iron Co. v. McQueen, 144 Ala. 265, 40 So 306. The complaint was that the plaintiff had been injured by the falling of a heavy piece of machinery upon him. The averment of the fifth plea that "plaintiff negligently allowed said machine to fall upon him" was clearly nothing more than a bare conclusion. Under the rule obtaining here, greater particularity is required in a plea than in the complaint. But pleas 3, B, and C, demurrers to which were overruled, illustrate the fact that no rule has been formulated in respect to the averment of contributory negligence which makes a plea of that nature impossible or even extraordinarily difficult in cases where the defense exists in fact. An averment of contributory negligence is not required to be as specific as the proof which may be necessary to support it. The statutory requirement is that there must be a succinct statement of the facts relied on in bar. It occasionally happens that from the facts as they are and of consequence as they must be alleged, different minds may reasonably draw different conclusions, and in such case it is the office of the pleader to state the facts succinctly and to draw the conclusion necessary to the maintenance of the defense. In this connection, the averment that the act put forward as constituting contributory negligence was negligently done is not without avail, as a casual reading of the common-law precedents in Chitty on Pleading will show. No requirement of particularity more exacting than the rule at common law has been adopted here. But no mere word of conclusion has been allowed to excuse the absence of at least a succinct statement of the facts. Plea 5 was bad.

The complaint is framed in all its counts under the employer's liability act. It is clear that, under the statute and under the complaint as it is framed plaintiff's right of recovery depends upon his ability to establish the existence of the contractual relation of master and servant between himself and the defendant. That relation depended upon contract. Certain pleas set up the defense that this alleged relation arose out of a contract which was imposed upon the defendant by the fraud of the plaintiff in misrepresenting his age. Fraud was thus laid at the root of plaintiff's case. The ruling in the trial court seems to have proceeded upon the theory that so long as the plaintiff was doing work of which the defendant got the benefit, he was entitled to the protection of the statute, however fraudulent and vicious may have been the means resorted to by the plaintiff in order to induce the defendant to enter into the contractual relation. Where one sues a common carrier for injury received while a passenger, the doctrine of the decided cases is that he cannot recover when it is made to appear that the ostensible relation between the parties is founded upon the fraud of the passenger. A relation so induced cannot be set up against the carrier as a basis of recovery. Fitzmaurice v. N. Y., N. H., & H. R. R. Co., 192 Mass. 159, 78 N.E. 418, 6 L. R. A. (N. S.) 1146, 116 Am. St. Rep. 236; Way v. Chicago, R.I. & P. R. R. Co., 64 Iowa, 48, 19 N.W. 828, 52 Am. Rep. 431; Toledo, W. & W. Ry. Co. v. Harvey Beggs, 85 Ill. 80, 28 Am. Rep. 613; Louisville, etc., R. R. Co. v. Thompson, 107 Ind. 442, 8 N.E. 18, 9 N.E. 357, 57 Am. Rep. 120. This is the doctrine of the cases generally, and it is based upon reason and good morals. In A. G. S. R. R. Co. v. Yarbrough, 83 Ala. 238, 3 So. 447, 3 Am. St. Rep. 715, this court appears to have recognized the principle in its application to a person claiming to be a passenger, and in a recent case it was expressly declared. Broyles v. Central of Ga. Ry. Co., 52 So. 81. My own judgment is that a just application of the general principle involved in the cited cases--that no right can arise out of a fraud--must result in a decision of the question at issue contrary to the appellee's contention. I would not, however, be understood as declaring that every misrepresentation made by one applying to an employer for employment so vitiates the ensuing contract as to deprive the employé of the benefit of the statute. To have that effect the misrepresentation must be material to the contract, must be made with the intent to defraud, and must deceive. It cannot be said as matter of law that the plaintiff's alleged representation that he was 21 years of age was not material to the contract of employment entered into by him and the defendant. There are considerations of great weight which might well induce a railroad company to refuse to employ minors. In Norfolk & Western R. R. Co. v. Bondurant, 107 Va. 515, 59 S.E. 1091, 15 L. R. A. (N. S.) 443, 122 Am. St. Rep. 867, plaintiff's intestate, while acting as a student fireman on the defendant's road, was killed under circumstances which, it was conceded, as against a passenger or an employé, would have constituted actionable negligence. Authorities were cited to show that in the ordinary case a student fireman is entitled to the status of an employé. But plaintiff's intestate had obtained the privilege of riding upon the engine by a fraudulent misrepresentation of his age, and in violation of a rule of the company known to him. The court observed: "The law is settled that it is one of the primary nonassignable duties of a corporation with a large number of employés performing difficult and dangerous duties to prescribe and promulgate rules for their government. In the performance of its duty, the Norfolk & Western Railway Company adopted a rule prohibiting the employment of infants under 21 years of age without the consent of parents or guardian. It is a reasonable and salutary rule, from whatever point of view it may be considered. It shields and safeguards the infant from the consequences of his inexperience and temerity, and it promotes the safety of the public by securing mature and efficient employés for the discharge of the dangerous and difficult duties pertaining to a common carrier of passengers and freight. It would be a hard measure of justice to hold a company responsible, on the one hand, for failing to prescribe rules, and, on the other, to refuse to protect it from the consequences of the violation of reasonable and proper rules adopted and promulgated in the discharge of the duty imposed by law." And it was held, there being no evidence that the injury was inflicted wantonly or intentionally, that the plaintiff could not recover. If the requirement was in practice more than a form, if it was seriously insisted upon as a material consideration in the making of the contract of employment in the plaintiff's case, and if the plaintiff procured his employment in actual fraud of the defendant's regulation, I find myself unable to affirm on any recognized principle of justice that a right of recovery under the statute might arise in his favor out of a contract so fraudulently imposed by him upon the defendant. We have been unable to consult the case of L. S. & M. S. Ry. Co. v. Baldwin, cited by appe...