121 So. 410 | Ala. | 1929
Appellee sued appellant Bugg, as receiver of the Atlanta, Birmingham Atlantic Railway Company, for damages suffered by reason of a personal injury alleged to have been caused by the negligence of a coemployé. The parties to this cause were at the time of appellee's injury engaged in interstate commerce, and the suit was brought under the Federal Employers' Liability Act, 35 Stat. at Large, p. 65, Comp. Stat. 1913, §§ 8657-8665; 45 USCA §§ 51-59. At the trial the court gave the general charge requested by appellant, and verdict and judgment went accordingly — this, on the stated ground that there was no evidence tending to show that appellee was an employé of the defendant corporation or its receiver. But, afterwards, on appellee's motion that judgment was set aside, and from that order this appeal is taken.
Appellant now insists that the general charge was properly given, and, to sustain that contention, submits the following statement of the evidence, which, with some additions *130 to be noted, fairly discloses the whole effect of the evidence: "The evidence shows that on January 1, 1925, the plaintiff was working in the A. B. A. yards, transferring water pipe out of a broken down railroad car into a good car, by means of skids between the two cars. The plaintiff was working under the direction and control of one Alex Breckenridge, a colored man. Breckenridge had a contract with defendant, which was not in writing, whereby Breckenridge transferred freight from all 'bad order' cars to 'good order' cars. By this is meant that when a car came into the defendant's yard, loaded with freight and consigned over defendant's line, which was in such bad condition that it should not be sent out, the freight in the car was transferred into a car in good order. Whenever a railroad inspector condemned a car as being 'bad order,' it was tagged and placed upon the transfer track. Thereupon Breckenridge transferred the freight from such car to a 'good order' car that was spotted alongside. In doing this work, Breckenridge employed such men to help him as he saw fit, depending upon the material to be transferred and the number of bad order cars. The plaintiff and the other men working with him at the time of his injury had been so employed by Breckenridge. Breckenridge gave all orders to such men as to the manner of doing the work, and otherwise supervised and controlled them, and paid them himself, the amount of such pay being either so much an hour, or so much a ton. The tools used by Breckenridge and his men were owned by him. Breckenridge received from the defendant so much per ton or car, for transferring the freight. He was not carried upon the pay rolls of the defendant, nor were the men he employed, although a regular pay roll was kept by the local freight agent of employés, which was sent to Atlanta, and such employés were paid by checks which came from the head office. Breckenridge was paid after each car was transferred, in cash, upon signed 'transfer slips,' which slips were then sent by the local agent of defendant to its auditor to account for the cash paid, and the auditor would then charge such amount to the railroad which had delivered the 'bad order' car. After Breckenridge was paid by defendant, he would pay the men employed by him, except that sometimes, if he had the money in his pocket, he would pay his men before being paid by defendant. The number of cars transferred daily by Breckenridge depended upon the number of 'bad order' cars spotted each day, varying from one to seven. When there were no bad order cars, Breckenridge and his men did nothing. Breckenridge had the entire supervision and control over the manner of doing the work. No one gave him or his men orders as to the manner of transferring the goods. After a car was transferred, an agent of defendant would inspect it to determine if it was properly loaded. The defendant did not know how many men Breckenridge hired, or who they were, gave no orders to such men, and did not discharge them."
In addition we note these statements by the plaintiff as witness, of more or less importance: "He [Breckenridge] got the money to pay off out of the office. He took the time up there and got the money and come back and paid me off. I don't remember how it was carried, whether it was in an envelope or not. * * * That is where he got the money. None of the hands never did go draw any money. He did all the drawing. I have seen him turn in the time and count the money out." And this: "You ask me if I ever see him [Breckenridge] working around the railroad moving things from one car to another car, and I answer that he works sometimes when he is short of hands. I have seen him having other folks to do that. That has been going on ever since I come here. This man that worked there in the office, Anderson, he come out there and gave orders what to do. He gave Alex orders — told him if they didn't work to turn them off and get more. After he gave those orders the men started getting that pipe over there."
We are not aware of any difference in principle between the decisions of the Supreme Court of the United States and our own in respect of the matter under consideration, but, since this action is prosecuted under the federal statute, and the decisions of that court are conclusively authoritative, we have had recourse to the decisions of that court.
In Casement v. Brown,
If, as appellee suggested in his motion for a new trial, the contract, in the performance of which Breckenridge and appellee were engaged, was entered into with the intent to evade responsibility under the federal act, and so was void under section 5 of the act, we do not find evidence in the record to sustain that suggestion. The relation brought about by the arrangement between Breckenridge and appellant may appear to be novel or unusual, but that fact alone cannot be held for evidence that the relation between them was that of employer and employé, and so that appellee was an employé of appellant, co-employé with Breckenridge, rather than his employé. As we view the record there is nothing more tangible to support appellee's case at this point than a vague feeling that perhaps appellant would not have entered into a contract of that sort. But that is not evidence. It will not suffice to sustain the burden of proof resting on appellant. Hence, our conclusion that the court was right in the first instance when it charged the jury, with hypothesis that they believed the evidence, to find for defendant, and erred when it set aside the resulting verdict and judgment.
Other grounds of the motion for a new trial are argued in the brief for appellant, but we have no brief from appellee suggesting that the court committed any other alleged error on the trial. However, the other errors assigned in appellee's motion in the trial court have been examined without finding that the granting of the motion should be justified on other grounds. We have therefore pretermitted any further statement as to the law of the case.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.