Wright v. McCord, 8 Div. 188

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation88 So. 150,205 Ala. 122
PartiesWRIGHT v. McCORD et al.
Docket Number8 Div. 188
Decision Date16 December 1920

88 So. 150

205 Ala. 122

WRIGHT
v.
McCORD et al.

8 Div. 188

Supreme Court of Alabama

December 16, 1920


Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by J.T. Wright against H.C. McCord and another for damages for personal injuries. Judgment for defendants, and plaintiff appeals. Reversed and remanded. [88 So. 151]

E.W. Godbey, of Decatur, and Tennis Tidwell, of Albany, for appellant.

Sample & Kilpatrick, of Hartsells, for appellees.

THOMAS, J.

The suit was for personal injury, and resulted in a judgment for defendant.

As originally filed the complaint was in four counts, declaring for failure to use ordinary care to furnish a safe place in which to work, for the negligence of the superintendent in charge of the work in which the injury occurred, for the negligent order of such superintendent that proximately caused the injury, and for a "defect in the said bin, which was connected with and used in the business of the master, to wit, defendant Walker, in connection with which the plaintiff was then and there engaged as an employee of the defendant." The parties defendant were H.C. McCord and J.S. Walker. In the superintendence counts said Walker was designated as the master, acting by and through his superintendent (McCord), who was ordering and directing the work of construction in the course of which plaintiff received his injury by the fall of the structure or bin that was being constructed.

The original complaint was filed on November 8, 1916. On July 24, 1918, the demurrer of J.S. Walker was sustained. Plaintiff declined to amend with reference to said defendant, and the order of the court was "that the said complaint be dismissed as to the said J.S. Walker, *** and that the cause stand for trial against defendant H.C. McCord." Thereafter, on November 6th, defendant's demurrers to counts 2, 3, and 4 were sustained on the grounds that no facts are stated to show any duty devolved upon defendant to "see that said bin was sufficiently and securely fastened and supported," or to show that defendant was "negligent in not having said bin sufficiently and securely fastened and supported"; that "the [88 So. 152] facts stated do not show that this defendant, by reason of his connection with the work described in said complaint, was charged with the duty of securely fastening and supporting the bin, which is alleged to have fallen, causing plaintiff's alleged injury." The judgment entry (November 6, 1918) recites, "Thereupon, plaintiff files amendment to count 4 of the complaint," and demurrer, being refiled "to count 4 of complaint as amended," was overruled. The fourth count as amended does not appear in the record, nor the "refiled" demurrer thereto, or is not so indicated. Issue being joined on counts 1 and 4 as last amended, count 1 was charged out at instance of defendant, and there was verdict and judgment for defendant on fourth count so amended.

No question of misjoinder of actions and parties in one count--counts 2, 3, and 4--is presented. The matter was eliminated by the ruling of the court in sustaining said Walker's demurrer and dismissing the cause as to him for failure to amend. L. & N.R.R. Co. v. Abernathy, 197 Ala. 512, 535, 73 So. 103; Sou. Ry. Co. v. Hanby, 166 Ala. 641, 52 So. 334; Sou. Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930. The matter being thus put out of the case, there was no error in giving the affirmative charge as to the first count.

Many assignments of error are predicated on the sustaining of foregoing grounds of demurrer to count 2 as originally filed. The count, if it may be maintained under subdivision 2 of section 3910 of the Code of 1907, as a sufficient statement of liability for the negligence of the superintendent, was not subject to the demurrer directed thereto. L. & N.R.R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280; Maddox v. Chilton, etc., Co., 171 Ala. 216, 55 So. 93; Cahaba Coal Co. v. Elliott, 183 Ala. 298, 62 So. 808; Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804; Langhorne v. Simington, 188 Ala. 337, 66 So. 85; Sou. Cot. Oil Co. v. Woods, 201 Ala. 553, 78 So. 907; Shebly Iron Co. v. Bean, 203 Ala. 78, 82 So. 92; T.C., I. & R.R. Co. v. Moore, 194 Ala. 134, 69 So. 540; Ala. Fuel & Iron Co. v. Minyard, 88 So. 145.

If count 3 was sought to be maintained against the master and superintendent under subdivision 3 of the Employers' Liability Act, it was not subject to the grounds of demurrer sustained thereto. It is averred that plaintiff's injuries were caused by the negligence of said McCord, who was in the service of the defendant Walker, employed to construct, with the aid and assistance of plaintiff and certain other employees, a cotton seed bin elevated a considerable distance from the ground and attached to the building insecurely; that plaintiff was bound to conform to the orders and directions of said McCord, and while so conforming "McCord negligently ordered" the plaintiff to hurry and finish or assist in finishing said bin while it was in such insecure condition, and while conforming to such order the bin collapsed, injuring plaintiff. The superintendent's negligence is specified as follows:

"The said McCord negligently ordered the plaintiff to hurry up and finish or assist in finishing the said bin, and while the plaintiff was conforming to the orders of said McCord the said bin collapsed and precipitated the plaintiff to the ground, or onto a pile of bricks, and plaintiff avers that the said injuries were occasioned by the negligence of the said McCord in this, that he himself was negligent in the construction of said bin; that by virtue of said orders and foremanship, the said bin was weak, insufficient, and insecure, which he knew, or was negligent in not knowing, and that while the said bin was so weak, insecure, and insufficient he caused and ordered the plaintiff to assume a position of danger and to perform the work in a hurry, and to finish up the said bin, wherefrom the injuries occurred ***"

See T.C., I. & R.R. Co. v. Moore, supra; Ala. S. & W. Co. v. Tallant, 165 Ala. 521, 51 So. 835; Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Nor. Ala. Ry. Co. v. Harper, 201 Ala. 679, 79 So. 251; Sou. Car & Fdy. Co. v. Bartlett, 137 Ala. 234, 238, 241, 34 So. 20; S.-S.S. & I. Co. v. Long, 169 Ala. 337, 340, 53 So. 910, Ann.Cas.1912B, 564; Repub. I. & S. Co. v. Williams, 168 Ala. 612, 616-618, 53 So. 76; L. & N.R.R. Co. v. Bargainier, 168 Ala. 567, 53 So. 138; M. & O.R.R. Co. v. George, 94 Ala. 199, 10 So. 145; Woodward Iron Co. v. Gamble, 203 Ala. 20, 81 So. 810.

The sufficiency of counts under subsections 2 and 3 of the statute (Code, § 3910) are tested by the averred facts showing a duty and its breach springing from the relation of master and servant or employer and employee, and for...

To continue reading

Request your trial
38 practice notes
  • Prudential Ins. Co. of America v. Zeidler, 6 Div. 935
    • United States
    • Supreme Court of Alabama
    • November 19, 1936
    ...may result from omitting to do what ought to be done as well as performing his duties in an improper manner. See, also, Wright v. McCord, 205 Ala. 122, 88 So. 150 (where this principle was carefully analyzed, following Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 16 So. 620, 28 L.R.......
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...79 So. 456; Patterson v. Patrick, 202 Ala. 363, 80 So. 445; Carswell v. B.F. Kay & Son, 214 Ala. 619, 108 So. 518; Wright v. McCord, 205 Ala. 122, 88 So. 150; Ferguson v. State ex rel. Acton, 215 Ala. 244, 110 So. 20; Nashville, etc., v. Cox, 18 Ala.App. 672, 94 So. 247. A further statu......
  • Shelby Iron Co. v. Morrow, 7 Div. 333.
    • United States
    • Supreme Court of Alabama
    • January 4, 1923
    ...512, 525, 73 So. 103, for authorities. There was no misjoinder of parties defendant in count F. Wright v. Mc Cord, 205 Ala. 112, 125, 126, 88 So. 150. The gravamen of the count is "said defendants negligently caused or allowed said tractor engine to remain at said place and in said pos......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A.(N.S.) 670, 14 Ann.Cas. 1139. See Wright v. McCord, 205 Ala. 122, 88 So. 150; Roman v. Dreher, 1 Ala.App. 429, 55 So. 1015. The case of Torrey v. Forbes, 94 Ala. 135, 139, 10 So. 320, as to a discontinuance, ha......
  • Request a trial to view additional results
38 cases
  • Prudential Ins. Co. of America v. Zeidler, 6 Div. 935
    • United States
    • Supreme Court of Alabama
    • November 19, 1936
    ...may result from omitting to do what ought to be done as well as performing his duties in an improper manner. See, also, Wright v. McCord, 205 Ala. 122, 88 So. 150 (where this principle was carefully analyzed, following Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 16 So. 620, 28 L.R.......
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...62, 79 So. 456; Patterson v. Patrick, 202 Ala. 363, 80 So. 445; Carswell v. B.F. Kay & Son, 214 Ala. 619, 108 So. 518; Wright v. McCord, 205 Ala. 122, 88 So. 150; Ferguson v. State ex rel. Acton, 215 Ala. 244, 110 So. 20; Nashville, etc., v. Cox, 18 Ala.App. 672, 94 So. 247. A further statu......
  • Shelby Iron Co. v. Morrow, 7 Div. 333.
    • United States
    • Supreme Court of Alabama
    • January 4, 1923
    ...512, 525, 73 So. 103, for authorities. There was no misjoinder of parties defendant in count F. Wright v. Mc Cord, 205 Ala. 112, 125, 126, 88 So. 150. The gravamen of the count is "said defendants negligently caused or allowed said tractor engine to remain at said place and in said position......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A.(N.S.) 670, 14 Ann.Cas. 1139. See Wright v. McCord, 205 Ala. 122, 88 So. 150; Roman v. Dreher, 1 Ala.App. 429, 55 So. 1015. The case of Torrey v. Forbes, 94 Ala. 135, 139, 10 So. 320, as to a discontinuance, ha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT