Travis v. Sloss-Sheffield Steel & Iron Co.

• Decision Date: 10 June 1909
• Citation: 50 So. 108,162 Ala. 605
• Parties: TRAVIS v. SLOSS-SHEFFIELD STEEL & IRON CO.
• Court: Alabama Supreme Court

50 So. 108

162 Ala. 605

TRAVIS v. SLOSS-SHEFFIELD STEEL & IRON CO.

Supreme Court of Alabama

June 10, 1909

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

Action by Seney Travis, administratrix, against the Sloss-Sheffield Steel & Iron Company. From a judgment for defendant plaintiff appeals. Affirmed.

Allen &amp Fort and J. M. Hanby, for appellant.

Tillman Grubb, Bradley & Morrow, for appellee.

MAYFIELD J.

This is an anomalous action. Each count of the complaint was evidently intended by plaintiff to state a cause of action under the "employer's liability act." Code 1907, §§ 3910-3913. This is evident, because each count practically follows some part of the language used in the act; second, because plaintiff attempted to prove the value of the life of her intestate to her and his dependents, which is the measure of damages under that statute, where death results and the action is by the personal representative. But each count of the complaint not only fails to show the relation of master and servant, either expressed or implied but affirmatively shows the contrary--that plaintiff's intestate was a servant of one Sanders, an independent contractor with defendant company. This is a material averment, if it is not the sine qua non, of a good complaint under the employer's liability act. It is doubtful if a complaint which fails to show the relation of master and servant, either expressly or inferentially, and shows affirmatively, as does this one, that such relation did not exist between intestate and the defendant, will support a judgment for the plaintiff under this statute.

The defendant, however, insists that the complaint is under the homicide statute. A pleader might intend to form a complaint under the employer's liability act, and fail therein, but yet state a complaint under the homicide statute. But we do not think that a party should be allowed to proceed under one of these statutes, form his pleadings as if under one, and go through the entire trial proceeding under that statute requesting rulings and orders as if under one statute, and, when he loses under that statute, say to this court: "I made the trial court err, by insisting that I was proceeding under one statute, when as a matter of law my complaint was under the other statute, so you must reverse this case and let me go back and try it under the other statute." The rules of law, pleading, evidence, and damages are entirely different under these two statutes. One is punitive entirely, and the other compensatory only. Evidence admissible under one might not be admissible, and often is not, under the other. A party is not allowed to...