Tennessee Coal, Iron & R.R. Co. v. Spicer

• Decision Date: 19 May 1921
• Docket Number: 6 Div. 395
• Court: Alabama Supreme Court
• Parties: TENNESSEE COAL, IRON & R.R. CO. v. SPICER.

89 So. 293

206 Ala. 141

TENNESSEE COAL, IRON & R.R. CO. v. SPICER.

6 Div. 395

Supreme Court of Alabama

May 19, 1921

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by John W. Spicer against the Tennessee Coal, Iron & Railroad Company, for damages for personal injuries suffered while in their employment. Judgment for plaintiff, and the defendant appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Black Altman & Harris, of Birmingham, for appellee.

McCLELLAN J.

The only count submitted to the jury was the fourth. Aside from its formal parts and the description of plaintiff's (appellee's) injuries, it reads:

"*** The plaintiff was employed by the defendant and was injured while in the discharge of his duties as an employee of the defendant, by falling from or through a scaffold, upon which this plaintiff was working as a riveter, and while he was so working in the service or employment of the defendant as such riveter. Plaintiff further avers that his injuries were proximately caused by the negligence of one, R.H Bumgardner, who was in the service or employment of the defendant, and who had superintendence intrusted to him, and whilst in the exercise of such superintendence, the said Bumgardner negligently permitted and suffered the said scaffold to be and remain in an unsafe condition, as constructed of defective and unfit material, so that it was dangerous and unfit for the purpose for which it was being used, as a scaffold."

The count was designed to state a cause of action under the second subdivision of our liability act (Code, § 3910). It is a "superintendence" count only; and the sufficiency of its averments is, on demurrer, alone determinable by reference to the exactions of that subdivision. The superintendence attributed to Bumgardner through the averments of this count contemplated his supervision of this scaffold with respect to its safety--a duty that is alleged to have been breached by him in the particulars, or with the results, averred, in proximate consequence of which plaintiff was injured. That such a superintendency may be constituted is not a matter of doubt. It is not different in principle from the supervision recognized in K. C., M. & B.R.R. Co. v. Burton, 97 Ala. 240, 245, 246, 12 So. 88, and S.S.S. & I. Co. v. Holloway, 144 Ala. 280, 284, 286, 40 So. 211; the latter treating the evidence, and not the sufficiency of the complaint on demurrer. See Ala. F. & I. Co. v. Minyard, 88 So. 145, where many approved counts are reproduced. The master may create a superintendent to preserve the master's servants from subjection to dangers incident to their service, to anticipate the possibility of intervening hazards, and to conserve the safety of servants while performing their service. The negligent failure of such a superintendent to perform his duty in the premises may result from an omission to discover and preserve servants from the danger of a "defect in the condition of the ways, works, machinery or plant" within the contemplation of the first subdivision of section 3910; but, if so, the servant injured in proximate consequence of the neglect of such a superintendent to exert proper care and skill to discover the source of danger to servants and to avert the hazard thereof to the servants coming within the sphere of such danger has a cause under the second subdivision of the liability act. In this instance the scaffold in question was not, because of its temporary character and function, an instrumentality within the definition of subdivision 1 of section 3910.

Under the second subdivision the capacity of a superintendent to be or become negligent is not limited to his positive acts. He may omit the discharge of a duty and thereby be or become negligent; and when he does so he is negligent "while in the exercise of his superintendence." A superintendent's duty defines the bases and limits of his possible neglect; and, if his duty be anticipatory, involving inspection of care that dangers consequent may be avoided of introduction or discovered, and their menace averted, and he omits to discharge such duties, the fault and proximately resulting injury is attributable, under subdivision 2 of section 3910, to his superintendence. The argument for appellant is predicated of the mistaken view that count 4 is an unallowable blending of causes of action under subdivisions 1 and 2 of section 3910, or that the substance of the right of action sought to be asserted in this count is referable alone to subdivision 1 of section 3910. The only reasonable construction of the count is that accorded it above--that it was designed, and in fact sufficiently states a cause of action under subdivision 2 of section 3910. None of the decisions of this court cited for appellant conclude against the views we have expressed. The Fitzgerald Case, 161 Ala. 397, 49 So. 860, does not do so. There may be language in the opinion of the Court of Appeals, in Birmingham Stove & Co. v. Lawler, 11 Ala.App. 534, 542, 66 So. 897, that is susceptible of an interpretation inconsistent with the conclusions prevailing here; but, if so, it is not binding here, no review in this court having been had of that pronouncement by the Court of Appeals. The argument for appellant would, in our opinion, lead to this result: That no liability could be predicated of the second subdivision of section 3910, if the negligence of the superintendent averred was with respect to a defect in the condition of the ways, works, etc., defined in the first subdivision of the statute. To this result we are not prepared to assent, the superintendence for the breach of the duties of which plaintiff declares being a distinctive duty capable of breach independent of a fault or defect, within, it may be, the definition of subdivision 1.

The count's averments sufficiently refer the scaffold causing plaintiff's injury to the superintendence of Bumgardner, and characterize as negligent his described duty as well as fault with respect thereto. Whether the performance by Bumgardner of the duty alleged would have resulted in Bumgardner's discovery of the unsafety of this scaffold was a matter not required to be averred in the count. There was no error in overruling the demurrer to count 4.

In so far as the averments of count 4 were concerned, there was evidence tending to support its material allegations. The fact of plaintiff's injury was not in dispute. His relation at the time to the master (defendant) was likewise not controverted. The means of his injury was a faulty piece of timber on which the plank floor of the scaffold rested. The...