Twin Tree Lumber Co. v. Day

• Decision Date: 24 April 1913
• Citation: 181 Ala. 565,61 So. 914
• Parties: TWIN TREE LUMBER CO. v. DAY.
• Court: Alabama Supreme Court

61 So. 914

181 Ala. 565

TWIN TREE LUMBER CO. v. DAY.

Supreme Court of Alabama

April 24, 1913

Appeal from Circuit Court, Chilton County; W.W. Pearson, Judge.

Action by J.E. Day against the Twin Tree Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lavender & Thompson, of Centerville, and Tipton Mullins, of Clanton for appellant.

Logan &amp Logan, of Centerville, for appellee.

SAYRE J.

The amended complaint, by which we mean count 2, upon which the case went to the jury, was framed for the statement of a case under subsection 2 of the Employer's Liability Act section 3910 of the Code, which allows the employé to recover when his injury is caused by reason of the negligence of the employer's superintendent, whilst in the exercise of superintendence. It lacked much of being a perspicuous statement of the case which plaintiff expected to prove; but it cannot be said that it was so vague, uncertain, and indefinite, as the demurrer alleged, that definite issues could not be formed under it. It showed defendant's duty to plaintiff by averring the relation between the parties and then that defendant's named superintendent negligently directed a lumber truck, which had been loaded for one kiln, to be placed in another, whereby plaintiff was hurt. This, under our decisions, constituted, at least as against the assigned grounds of demurrer, a sufficient complaint, and the demurrer was properly overruled. Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280. We think it might even be spelled out how the alleged order or direction operated to hurt plaintiff, but as it was not necessary for the complaint to show that whatever of doubt and difficulty it may have in that respect did not render it demurrable.

We do not know why the assigned grounds of demurrer should have been sustained to pleas 7, A, and B, as answers to the second count of the complaint, or why, after the judgment affirming the insufficiency of these pleas, the demurrer to plea L was overruled. But that is immaterial, for any defense that could have been proved under any of the pleas held bad was provable under plea L, and there is no indication in the record that the court in any way limited defendant's effort to prove the last-named plea. Sustaining the demurrers to the several pleas first named was therefore error without injury.

On reading the testimony in this cause we are convinced there was error in overruling defendant's motion for a new trial. The allegation of the complaint is that "said Suell [defendant's superintendent] negligently directed a lumber truck loaded for No. 1 dry kiln of the defendant to be placed in No. 3 dry kiln of the defendant, which [referring, we take it, to the truck loaded for kiln No. 1] was longer than the cars loaded for No. 3 kiln, thereby so closing the manway in dry kiln No. 3 of the defendant that when said car was let down the incline it bruised and injured and otherwise damaged the body of the plaintiff." That testimony of the plaintiff from which alone, since there was none to corroborate his version of the facts, the jury inferred that Suell gave either any general order that cars loaded for one kiln should be placed in another--if it may be conjectured that he was so unfit for his duties as to give any such general order--or that the particular car which caused plaintiff's injury, after being loaded for one kiln, should be placed in another, is most unsatisfactory. ...