W.F. Covington & Co. v. Sewell

• Decision Date: 14 June 1917
• Docket Number: 7 Div. 887
• Citation: 200 Ala. 402,76 So. 318
• Court: Alabama Supreme Court
• Parties: W.F. COVINGTON & CO. v. SEWELL.

76 So. 318

200 Ala. 402

W.F. COVINGTON & CO. v. SEWELL.

7 Div. 887

Supreme Court of Alabama

June 14, 1917

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Action by Marvin Sewell, pro. amt, against W.F. Covington & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Hood &amp Murphree, of Gadsden, for appellant.

Hugh Reed, of Center, and Hugh White, of Gadsden, for appellee.

McCLELLAN J.

The plaintiff, Marvin Sewell, a minor, had his hand completely severed by contact with a rapidly revolving "bolt saw" used by the firm of W.F. Covington & Co. (composed of John Lay and W.F. Covington) in the operation of a handle mill. The saw was so set as to have the effect of a stationary saw revolving through or in the surface of a table, the saw projecting in its sphere some distance below the surface of the table and accumulating on the floor underneath the sawdust from the cut timber. The case was submitted to the jury on the issues tendered by counts 3, 4, and 5, a general traverse of their averments, and pleas of contributory negligence. All of the counts purport to state a cause of action under the employers' liability statute (Code, § 3910). Count 3 was drawn to charge a defect in the condition of the "bolt saw," in that it was not safeguarded below the table from contact therewith by a workman, count 4 attributed the injury to the negligence of John Lay, a superintendent, in putting plaintiff to work about the saw without warning him of the danger, notwithstanding he knew plaintiff was ignorant in the premises, and count 5 ascribed the injury to a negligent order to clean out the accumulated sawdust beneath the table without warning him of the, to him, unknown danger. The plaintiff, who was then about 19 years of age, was engaged in removing the sawdust underneath the table when the saw severed his hand and arm below the elbow.

The appellee has moved the dismissal of the appeal because of the delay in filing the transcript. It appears from the record that the appeal was taken on January 17, 1917, several days after the call of the division to which the county of Cherokee belongs. The transcript was filed May 28, 1917, and the appeal submitted on the next day on the call of the Seventh division. No call of the Seventh division intervened after the appeal was taken, before the submission was effected. The motion is without merit. The fact that the bill of exceptions was signed before the appeal was taken is unimportant. Decatur Water Works Co. v. Foster, 161 Ala. 176, 49 So. 759. The diligence contemplated in requiring the filing of transcripts is inceptive upon the taking of the appeal.

The first assignments of error urged in brief are based upon the overruling of demurrer to counts 4 and 5, the particular only, criticism made being that, since the mill plant was owned and operated by a firm of which the defendant John Lay was a member, John Lay could not be a superintendent or one to whom there was committed the power to give orders, under the second and third subdivisions of Code, § 3910. The argument is that a superintendent "must be a servant" to...