Standard Steel Co. v. Clifton
| Citation | 194 Ala. 300,69 So. 937 |
| Decision Date | 14 October 1915 |
| Docket Number | 736 |
| Parties | STANDARD STEEL CO. v. CLIFTON. |
| Court | Supreme Court of Alabama |
Rehearing Denied Nov. 18, 1915
Appeal from City Court of Gadsden; John H. Disque, Judge.
Action by E.J. Clifton, administrator, against the Standard Steel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Hood & Murphree, of Gadsden, and Stokely, Scrivner & Dominick, of Birmingham, for appellant.
W.J Boykin and J.M. Miller, both of Gadsden, for appellee.
The action is under the Employers' Liability Act, to recover damages for the alleged wrongful death of a servant who was engaged in mining iron ore.
The complaint, as amended, contained 14 counts, numbered from 1 to 9, and from A to E, alphabetically. Demurrers were sustained to counts 8 and 9, and overruled as to the others but the affirmative charge was given as to counts A, B, C, and D.
Counts 1 and 2 were based on negligence of master, as to furnishing a safe place for the servant to work in. The allegation as to this negligence is as follows:
"The defendant negligently failed to provide said intestate with a reasonably safe place in which to perform the duties of his employment."
Counts 3, 5, 6, and 7, each seek to recover under the second subdivision of the Employers' Act (section 3910 of the Code). Counts 3 and 6 ascribe the negligence to one Arthur McDaniel, to whom the master had intrusted superintendence, in the sixth count alleged to be the defendant's mine boss. Counts 5 and 7 ascribe the negligence to one Pink Minton, who is alleged to have had superintendence intrusted to him by the master, and is described as the assistant mine boss. The negligence alleged in each of these four counts was that the servant named "negligently caused said slate or rock to fall upon plaintiff's intestate."
The fourth count declared under the first subdivision of the statute, as for a defect in the ways, works, etc., and the defect alleged was that the roof of the mine at the place where intestate worked was defective. Count E is under the second subdivision, and is based on the negligence of Pink Minton, assistant mine boss, in the failure to inspect the mine at the place of the injury.
To these 11 counts the defendant pleaded the general issue, and eight special pleas, setting up contributory negligence on the part of the intestate. The specified negligence of plea 2 was a breach of the alleged duty to safely prop the roof of the mine at the place of injury; that of plea 3 was the failure to pull down loose slate or rock from the roof; that of plea 3 1/2 was the failure to keep the roof in good condition, setting out in detail the allowing of slate or loose rock to remain in the roof, which he should have removed. Plea 4 alleged a failure to examine or inspect the roof. Plea 5 was the same as 4, but in addition set out in detail that the accident was the result of the accumulation of loose rock and slate, which fell on account of failure to inspect. Plea 6 set up negligence in removing a jack rock, which allowed the loose rock to fall. Plea 7 set up negligence in removing the support which held the loose rock or slate. Plea 8 alleged the failure to prop the roof, and failure to pull down the loose rock or slate which fell on intestate. Each plea being addressed separately and severally to each count, there were thus presented 99 issues. The court sustained demurrers to some of the counts, and overruled those as to others, and the record therefore presents an arithmetical puzzle of some difficulty, in the task to determine the number, as well as the preciseness or certainty, of the issues upon which the case was really tried.
The judgment entry as to the ruling on the demurrers to the pleas is as follows:
"On this the 3d day of November, 1914, come the parties by attorneys, and the plaintiff demurs to the defendant's pleas upon the grounds specifically set forth in said demurrer, and upon due consideration it is ordered and adjudged by the court that said demurrer to pleas 3 and 4 to counts 3, 4, 5, 6, 7 be and the same is hereby overruled, and demurrer to pleas 6, 7, 8, to counts 3, 5, 6, 7, 8, be and the same is hereby overruled; and the said demurrer to pleas 2, 3, 3 1/2 and 5 to counts 1, 9, be and the same is hereby overruled, and the said demurrers to the remaining pleas to other counts of the complaint be and the same is hereby sustained."
There are 55 assignments of error. We will, however, treat only those which are sufficiently insisted upon in brief. The assignments of error as to rulings on demurrer to the complaint are not sufficiently insisted upon to merit consideration further than we will indicate. In the fullest brief of appellant no reference is made to the ruling on the demurrer to the complaint. In the other brief the ruling is stated as one of the questions for decision, but there is no argument, further than a restatement of the assignments of error, and no particular defect is pointed out further than those in counts declaring under the second subdivision, and as to those the insistence is without merit, as the counts practically follow those often held good by this court. Some of the grounds of demurrer to these counts were speaking demurrers; and the counts did in fact contain the allegations of superintendence, and that the negligence occurred whilst the servant was in the exercise of such superintendence.
As to the ruling on the demurrer to the pleas, as above stated, it is difficult to say whether or not there was error, and more difficult to say whether or not the record shows that injury resulted to appellant from such ruling. The difficulty arises because each of the pleas was held good as to some of the counts, and bad as to others, some of the different counts state the same cause of action, but in varying language or phraseology, and some of the pleas set up the same defense but in varying phraseology. It is certain that the defendant had the opportunity of proving every one of its pleas to one or more of the counts, but it was not allowed to prove any one of these special pleas to all of the counts. The verdict being general as to all the counts, it is impossible for us to know on which of the counts the jury found for the plaintiff, further than we have stated above. We have endeavored to work out this puzzle of pleadings, to see if we could find that the ruling was without injury, if erroneous, and thus avoid considering the sufficiency of the pleas as to which demurrers were sustained; but we have been unable to do so, and we will therefore have to treat the sufficiency of these pleas.
Pleas 2, 3 1/2, and 5 were held insufficient as to all counts except 1 and 2, which declared on the common-law liability for failure of the master to provide a reasonably safe place in which the servant was to perform his duties. If the pleas were good defenses as to these counts--and they seem to be--we see no reason why they were not good to those counts which sought to recover under the second subdivision of the statute, on account of the negligence of servants who were intrusted with superintendence. The pleas could not be good defenses to counts 1 and 2, unless they alleged facts to show that intestate was guilty of negligence which proximately resulted in his injury or death. That is, the pleas must show that the negligence of intestate, alleged in the pleas, concurred with that of the master alleged in the counts, to produce the injury complained of; and this, the pleas unquestionably do. If the facts stated in these pleas 2, 3 1/2, and 5, were true--and on demurrer they must be so treated--they were each good answers to any one of the counts, each count, as it does, declaring on simple negligence only of the master, or of his servant, under the statute. If the pleas had...
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