U.S. Cast Iron Pipe & Foundry Co. v. Fuller

• Citation: 102 So. 25,212 Ala. 177
• Decision Date: 16 October 1924
• Docket Number: 6 Div. 82
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. FULLER.
• Court: Supreme Court of Alabama

102 So. 25

212 Ala. 177

UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. FULLER.

6 Div. 82

Supreme Court of Alabama

October 16, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action for damages for personal injury by Uriah Fuller against the United States Cast Iron Pipe & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brenton K. Fisk, of Birmingham, for appellant.

Perry Mims & Green, of Bessemer, and Black, Harris & Foster, of Birmingham, for appellee.

SAYRE J.

Appellant had a contract with one Wilkinson by which the latter was to mine and deliver to appellant clay for appellant's mud mill. The property from which the clay was taken was the property of appellant. The clay lay under a top soil 6 to 18 inches deep. The depth of the clay, which lay between the top soil and an underlying stratum of rock, is stated as being 6 to 9 feet. Plaintiff, appellee, was at work for Wilkinson loading clay into a wagon, when the adjacent bank caved in upon him, causing the injuries on account of which be brought this action.

The burden of defendant's demurrer to the third count of the complaint--all others having been eliminated--was that it showed plaintiff to have been an employee of defendant, and so that plaintiff's exclusive recourse was under the Workmen's Compensation Act (Laws 1919, p. 206). This demurrer was overruled, and properly so. The language of the count is:

"Plaintiff further alleges that *** he was engaged in work in the defendant's said clay pit, not as an employee of defendant, but by invitation of the defendant, and with the defendant's consent, and while so working," etc.

This language denies the demurrer.

The evidence showed without dispute or contrary inference that plaintiff was, at the time of the accident which resulted in his injury, employed by Wilkinson as a day laborer. Wilkinson's contract was to furnish clay to defendant's mud mill, for which he was paid by the load. Defendant saw to it that the clay delivered to its mud mill was of the right sort; that is, contained not too much dirt, not too much of the top soil. Defendant had in its employment a safety engineer who overlooked all the operations conducted by defendant in the manufacture of pipe, and this engineer occasionally looked over the digging of clay by Wilkinson. Defendant required, in a general way, that Wilkinson furnish enough clay to keep its mill at work. Otherwise than as stated defendant had nothing to do with Wilkinson's operations in the pit. These facts, very clearly in our judgment, establish the conclusion that Wilkinson was an independent contractor. Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609; Hubbard v. Coffin & Leak, 191 Ala. 494, 67 So. 697; Sloss-Sheffield Co. v. Edwards, 195 Ala. 376, 70 So. 285, and cases cited.

It is alleged in the complaint that--

"The said clay pit was dangerous and liable to cave upon a person employed as plaintiff was, and which danger was not known to the plaintiff, but which danger and the ignorance thereof of plaintiff was known to defendant, or by the exercise of reasonable diligence should have been known to the defendant, and the defendant negligently failed to warn the plaintiff of such danger, and as a proximate consequence of such negligence on the part of defendant plaintiff was in a place dangerous to such cave, or may be liable to occur, and while in such position such cave-in did occur, casting the earth and clay upon plaintiff, and the injuries alleged, *** which was a proximate consequence of the defendant's negligence in failing to warn plaintiff of such danger."

Plaintiff had been in the employment of Wilkinson for some time. The accident happened late in the afternoon of Tuesday. Work at the particular place where plaintiff was hurt had been suspended on the preceding Thursday. When plaintiff was sent back to work at that place, under instructions by Wilkinson he worked, not on the face of the surrounding bank of clay, but on the bottom of the pit. His work on that occasion, it seems, had nothing to do with the caving in of the bank. At that point the pit was 7 or 8 feet deep, and the clay had been dug back under the surface about 18 inches, leaving an overhang of that much. We quote from appellee's brief:

"The testimony all showed that this was not in itself an apparently dangerous condition. It would appear ordinarily strong enough to stand without falling. But it appeared upon this occasion and at this place that there was on the surface a crack about 2 inches wide and several inches deep, about 18 inches from the edge of the soil overhanging this pit. The crack was not observable by one in the pit. It was shown that the defendant's safety engineer was at that point that very morning, looking around and talking and attending to his duties of protecting the people who were upon the premises of the defendant. He testified that there was no such crack there. He further testified that, if there had been such a crack there, it would have been dangerous. He further testified that, if he had seen any such crack there, he would have notified the employees in the pit."

Plaintiff testified that he did not know of the crack; that he was ignorant of the danger; and that he was not warned against it. In these circumstances the bank of clay caved in, falling on plaintiff.

Whether plaintiff be considered as an invitee of defendant ( Tenn. Co. v. Burgess, 158 Ala. 525, 47 So. 1029) or a licensee serving in part the interest of defendant ( Sloss-Sheffield Co. v. Edwards, 195 Ala. 376, 70 So. 285),--clearly he was not a bare licensee--defendant's duty to him has been thus stated by the eminent Judge Cooley in Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154:

"A person giving such a license, especially when he gives it wholly or in part for his own interest as was the case here, and thereby invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware."

This statement of duty in cases like this has been approved by this court in Sloss Iron & Steel Co. v Tilson, 141 Ala. 161, 37 So. 427, and Republic Iron & Steel Co. v. Luster, 192 Ala. 501, 68 So. 358. This principle had been previously examined at length by Judge Cooley in Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N.W. 499, 43 Am.Rep. 456, where authorities were cited and the principle declared to be very just and very familiar. Frequently we encounter the formula:

"The owner or occupant of premises, who induces others to come upon it by invitation, express or implied, owes them the duty of using reasonable or ordinary care to keep the premises in a safe and suitable condition

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