77 So. 388 | Ala. | 1917
Lead Opinion
The complaint in its several counts shows that the building, occupied by defendant and on the fourth floor of which plaintiff's (appellee's) intestate was engaged in and about the work for which he was employed by defendant, caught on fire whereby plaintiff — we presume the pleader intended to say plaintiff's intestate — was so burned, asphyxiated, or otherwise injured that he was caused to fall, jump, or be thrown from the building to the street below and to die.
The first count, framed under the common law, declared upon defendant's negligent failure to furnish intestate with a reasonably safe place in which to do and perform the work for which he was employed. The only objection taken to the count in a manner requiring notice is that a reasonable degree of care in the premises alleged did not exact of defendant the duty of providing against the unforeseen and unusual danger of a fire. The old common-law rule, adopted of course with reference to the buildings of the time, was that where a *95
building was properly constructed for the use to which the occupant was putting it, and was not peculiarly exposed to fire from the character of the work carried on within it, the occupant was not required by any duty he owed to his employés therein to provide against so remote a contingency as the destruction of the building by fire otherwise than by the ordinary means of stairways, halls, doorways, and windows. Jones v. Granite Mills,
Like considerations lead to the conclusion that the court did well to overrule the causes of demurrer alleged against the second and fourth counts of the complaint, which counts charged negligence under the superintendence clause of the Employers' Liability Act.
Count 5 of the complaint was evidently framed under section 7095 of the Code, which reads as follows:
"7095. Fire Escapes. — Any owner, proprietor, or manager of any hotel, office building, school building, store, or manufacturing building, which is more than two stories high, now erected, who shall fail for six months after the adoption of this Code to have securely fixed and conveniently arranged so as to be accessible to persons lodging in, working in, or occupying such building, * * * good and sufficient fire escapes or ladders for each story of said building, shall be guilty of a misdemeanor," etc.
The count alleges that "defendant in the conduct of its business" occupied the building, and "that the said building was an office building, store, or manufacturing plant, and was more than two stories high, and defendant had been in possession of and using said building for more than six months immediately preceding and up to the time of said death, and wrongfully failed to have securely fixed and conveniently arranged so as to be accessible to said intestate, who as such employé of defendant was working in or occupying an upper story of said building at the time of said fire in said building, good and sufficient fire escapes or ladders for the said story of said building on which said intestate was on the occasion aforesaid, and as a proximate consequence of said wrong said intestate's death was caused." The effort, we take it, and the parties so consider it in their briefs, was to charge a violation of the statute, and the point of the demurrer is that the count fails to show that defendant was the owner, proprietor, or manager of the building.
The statute, though it operates to provide a remedy for persons injured by a violation of its terms, is highly penal. While its purpose is not to be defeated by a construction too narrow and strict, yet it imposes a duty unknown to the common law, punishes a neglect of that duty criminally, and, it scarcely needs to be said, its condemnation cannot be extended by implication to persons who do not fairly come within its terms. Schott v. Harvey,
On the evidence defendant was entitled to the general charge as to counts 2 *96
and 4. These counts charge, under the second subdivision of the Employers' Liability Act (Code 1907, § 3910 [2]), that intestate's death was caused by the negligence of defendant's superintendent whose name, it is alleged, was unknown to plaintiff. There was no evidence of superintendence or that there was any superintendent. There was no evidence that superintendence of the building was delegated to any one. Appellee argues that from the size of the building and the nature of the business carried on therein the jury were authorized to infer that there was a superintendent. He also refers to the fact that one of defendant's witnesses, being asked whether he had ever made a report to his superior officers in reference to any accumulation of trash, or rubbish, or excelsior, or other inflammable material near the elevator shaft, answered that he remembered "reporting something once on that general order, that there was excelsior in the rear of the building on the first floor." Proof of the case alleged in these counts was necessary to a recovery under them, and the burden of proof rested upon the plaintiff. The circumstances referred to, very clearly it seems to us, furnished no sufficient basis for an inference that there was at the time of the fire which resulted in the death of plaintiff's intestate any employé of defendant to whom was delegated the duty of superintendence over the building. Appellee, to close this gap in his case, pushes his argument still further, and asserts that "if no one else had such a duty, defendant's general executive officer, to wit, the president, would have same cast upon him." But, obviously, this argument involves a failure to observe the wide distinction between the fellow-servant doctrine of the common law and the rule of the Employers' Liability Act. As we have before said, the declaration in these counts is under the act, and any recovery had on them must be properly referable to it, must be sustained by evidence of the material facts which were alleged in order to bring the case under the influence of the act. In the evidence shown by the record in this case, we repeat, the court finds nothing to sustain a finding that there was any negligence of any superintendent of the building occupied by appellant nor anything to exclude the conclusion that negligence, if found to exist, was the negligence of the corporate defendant or of a fellow servant of plaintiff's intestate. It follows hence that defendant should have had the general charge against these counts. "To hold otherwise would be to fasten liability on the master to the servant for that which is at most negligence of a fellow servant, having no greater power or authority than the servant who complains of the injury." This the statute does not authorize. Sloss-Sheffield Co. v. Green,
There was no error in refusing the charge set forth in the seventh assignment of error. We have heretofore stated our opinion that the circumstances may show a tenant to be an owner, proprietor, or manager within the purview of the statute. The charge had therefore a tendency to mislead.
The court holds that the question as to defendant's alleged breach of its common-law duty to furnish a reasonably safe place — a duty that rested upon defendant without reference to the statute, though the statute measures the duty of all within its letter and purview so far as concerns the furnishing and maintenance of fire escapes or ladders — and the question as to the alleged contributory negligence of plaintiff's intestate in failing to avail himself of the fire escape that was provided, were questions for the jury.
Nothing more need be said. For the several errors indicated, the judgment must be reversed.
Reversed and remanded. All the Justices concur.
Concurrence Opinion
While I concur in the conclusion that prejudicial error underlies the judgment in this case as well as in B. R., L.
P. Co. v. Milbrat,
