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

Citation171 Ala. 251,55 So. 170
PartiesTENNESSEE COAL, IRON & R. CO. v. SMITH.
Decision Date02 February 1911
CourtSupreme Court of Alabama

Rehearing Withdrawn April 28, 1911.

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Richard H. Smith against the Tennessee Coal, Iron &amp Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Dowdell C.J., and McClellan, J., dissenting.

The first count is as follows: "The plaintiff claims of defendant the sum of $15,000 as damages, for this: That heretofore, on, to wit, the 11th day of January, 1909, the plaintiff was in the employment of and working for the defendant in and about the operation of its coal mine, at Johns, in Jefferson county, Ala., and was in the discharge of his duties in the line and course of his employment, and that while the plaintiff was so engaged in the discharge of his duties one of defendant's tram cars became and was derailed and thrown off the tram track in what was called and known as second east entry in slope No. 4, and when said car was so derailed or thrown off the track, it struck the plaintiff and caught his left leg against or between the car and rib of said mine in said entry, and greatly crushed bruised, and mangled the same, so that it was necessary to have his leg amputated, and it was amputated. [Here follows a catalogue of special damages suffered.] And plaintiff avers that his said injuries and damages were proximately caused by reason of the negligence of the defendant. Wherefore plaintiff sued and claims damages."

The demurrers were as follows: (1) "Said complaint does not set forth a cause of action against the defendant, in that it does not appear that the defendant was guilty of such negligence as to make it responsible for plaintiff's injuries." (2) "It does not appear how plaintiff's injuries were proximately caused by reason of the negligence of the defendant." (3) "For aught that appears, the negligence complained of was the negligence of a fellow servant of the plaintiff." (4) "It does not appear how said tram track was defective and in an unsafe condition."

Count 4 is as follows: "Plaintiff adopts and makes part of this count all of the first count down to and including the words 'and he was permanently injured and disabled,' being all of the count down to the second paragraph thereof, and adds the following: 'And plaintiff avers that his said injuries and damages were proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant connected with or used in the said business of the defendant, in that said mine entry was in a defective and unsafe condition, and that said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service or employment of defendant, and intrusted by it with the duty of seeing that its ways, works, machinery, or plant were in proper condition.' Wherefore plaintiff sues and claims damages as aforesaid."

Demurrers assigned to count 1 are reassigned to count 4, with the following additional grounds: (1) "It does not appear how or in what respect said mine entry was defective." (2) "The allegations in respect to said defect are too vague, indefinite, and uncertain." (3) "The defect as alleged does not constitute a defect within the terms of the employer's liability statute." (4) "It does not appear that there was such a defect in the ways, works, machinery, or plant connected with or used in the business of the defendant as to make this defendant responsible for the injuries complained of."

Percy, Benners & Burr, for appellant.

Estes, Jones & Welch, for appellee.

MAYFIELD J.

The reporter will set out in his statement of facts in reporting this case the first and fourth counts of the complaint and the grounds of demurrer thereto.

The action is by a servant against the master. It is based solely upon negligence. The counts, therefore, to state a good cause of action, must show actionable negligence on the part of the defendant, and injury to plaintiff proximately caused thereby. The only allegation as to negligence in the first count is as follows: "That said injuries and damages were proximately caused by reason of the negligence of defendant." This is not sufficient, nor is it made sufficient by the other allegations showing the relation of master and servant between the parties. All negligence is not actionable, and pleadings, to be sufficient to state a cause of action grounded on negligence, must affirmatively show that the negligence relied upon is actionable.

If pleadings as to negligence show a duty owed by the defendant to the plaintiff, and a breach of that duty to the damage or injury of plaintiff, very general averments of negligence will suffice. As is often said, they need be but little more than conclusions; but the duty and its breach must be shown. Merely alleging that a given act was negligence or was negligently done, without more, is not sufficient. Such pleadings may allege negligence, but the trouble is it is not in such cases "actionable negligence."

Actionable negligence has been defined by this court to be "the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence. Even if the defendant owes a duty to some one else, but does not owe it to the person injured, no action will lie. The duty must be to the person injured." Southern Railway Co. v. Williams, 143 Ala. 217, 38 So. 1014. In every action grounded solely on negligence there are three essential elements to a right of recovery: First, a duty owing from defendant to plaintiff; second, a breach of that duty; and, third, an injury to plaintiff in consequence of that breach. The rule has been thus clearly and succinctly formulated by the Supreme Court of Indiana. Faris v. Hoberg, 134 Ind. 274, 33 N.E. 1029, 39 Am. St. Rep. 265: "In every case involving actionable negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient."

The true rule as to pleading negligence is thus stated in 29 Cyc p. 565 et seq.: "The general rules of pleading apply to actions for negligence. Reasonable certainty in the statement of essential facts is required to the end that defendant may be informed of what he is called upon to meet at the trial. Facts showing a legal duty and the neglect thereof on the part of defendant, and a resulting injury to plaintiff, should be alleged, but no great degree of particularity is required. * * * In order to maintain an action based on negligence, the declaration or complaint must show the existence of some duty which defendant owed plaintiff, and, in addition, must allege a breach of such duty. Failure to specifically aver the duty of defendant and the breach should be taken advantage of by demurrer and the objection cannot be made for the first time in the appellate court. * * * The duty of defendant must be shown by a statement of facts from which the duty follows as a matter of law. A mere general allegation of the existence of a duty is insufficient, and such general averment is a conclusion of law. Nor will the characterization of an act as negligent supply an omission to allege facts showing omission of duty. Allegations of facts from which the duty arises are sufficient without showing the details, and the manner in which the duty was imposed need not be alleged." And the rules are thus stated in 14 Encyclopedia of Pleading and Practice, p. 331 et seq.: "The complaint or declaration in an action for negligence should allege a duty owing to the plaintiff by the defendant, or state facts from which the law will imply the duty. * * * A general averment that it was the defendant's duty to do the thing alleged to have been omitted is insufficient. The facts or circumstances from which the law will imply the duty should be stated. * * * The complaint or declaration in an action for negligence should allege a breach or negligent performance of the duty owing the plaintiff by the defendant. * * * The rule is well-nigh universal that in an action for negligence the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence." These rules have been thus often stated by this court: "When the...

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