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

• Decision Date: 20 May 1915
• Docket Number: 13
• Parties: TENNESSEE COAL, IRON & R. CO. v. DAVIS.
• Court: Alabama Supreme Court

69 So. 544

194 Ala. 149

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

No. 13

Supreme Court of Alabama

May 20, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Joe Davis against the Tennessee Coal, Iron & Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Gen.Acts 1911, p. 449). Reversed and remanded.

Percy Benners & Burr, of Birmingham, for appellant.

Mathews & Mathews, of Bessemer, for appellee.

THOMAS J.

The first assignment of error is based on the overruling of appellant's demurrer to the second count as last amended. The count is as follows:

"Plaintiff claims of the defendant $1,000 as damages for that heretofore, to wit, on or about the 25th day of February, 1913, plaintiff was rightfully at work in defendant's mine near Bessemer, Ala., assisting a servant of defendant in and about setting a drill machine, and while so doing the drill fell upon plaintiff's leg and crushed and mashed the same, so that plaintiff was disabled from work for a long time, made sick and sore, suffered great mental and physical pain and anguish, rendered unable to work and earn money for a long time, and caused to spend much money for medicines and doctors' bills in and about his efforts to cure and heal his wounds and injuries; hence this suit.

"Plaintiff alleges that his said injuries were approximately caused by the negligence of the agents and servants of the defendants who were then and there engaged in and about the work or business of the defendant in connection with setting up said drill machine on the occasion aforesaid wherefore he sues."

This count does not declare as upon a wrong to a servant of the defendant. It is not, however, subject to the demurrer interposed. Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017; Republic Iron & Steel Co. v. Luster, 68 So. 358; Sloss-Sheffield Co. v. Stewart, 172 Ala. 516, 55 So. 785. The complaint proceeds upon the theory that plaintiff was not a servant.

One injured cannot sue as a stranger, and recover on proof showing he was a servant of the master, whom he impleads, any more than a stranger to the service of the master may sue as his servant, and recover. Choate v. A.G.S.R.R. Co., 170 Ala. 590, 54 So. 507. The elements and the measure of duty are different and distinct. Southern Railway Co. v Cooper...