Lookout Mountain Iron Co. v. Lea, 39 So. 1017

Lookout Mountain Iron Co. v. Lea

39 So. 1017 | Ala. | 1906

TYSON, J.

The trial of this cause and the judgment-rendered in it was at a time provided by law for the holding of the court which was presided over by a ele jure judge.

There is, therefore, no merit in- the contention that the judgment is a nullity.

The first and second counts of the complaint, after amendment, upon which judgment was rendered are in case and not- in trespass. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Birmingham Ry., Light & Power Co. v. Moore, in MS., 39 So. Rep. And the propf of the negligence by the servants of defendant will support the allegation of negligence in each of these counts-. In this character of cases the negligence of the agent or servant of a corporation is the negligence of the corporation. — Birmingham Ry., Light & Power Co. v. Moore, supra, 39 South., and authorities there cited.

There were two objections urged by way of demurrer to the sufficiency of each of these counts. The first is that the plaintiff’s intestate, on the averments, was a mere licensee in the mines of defendant and, therefore, it- owed him no duty other than not to wantonly or intentionally injure him.

In each of the counts it is averred that plaintiff’s intestate was rightfully at work in the mine of the defendant, assisting one Summers, whom, it is alleged, was employed by defendant to mine coal in its mine as a contractor. It will scarcely be denied that Summers had the right to employ the plaintiff’s intestate to assist him, and that defendant had no right to forbid such an employment. The plaintiff’s intestate, therefore, had the right to be in the mine, for the purpose of doing work under his employment- without regard to any express or implied license or permission of the defendant. His status, therefore, was not that of a mere licensee, but •that of a person asserting and exercising a lawful right.

*175The other objection is, that the counts do not apprise the defendant of the relation existing between it and plaintiff’s intestate at the time of the alleged injury, and of this the defendant was entitled to know. This objection seems to proceed upon the theory that unless the relation of master and servant existed between the parties at the time of the alleged injury or that plaintiff’s intestate was in the mine upon the expiess or implied invitation of the defendant, there can be no recovery on account of the latter’s negligence in the operation or handling of its cars. This is unsound. The principle applicable here, in our opinion, is correctly stated in a note found on page 43 of 46 L. R. A. in these words: “Independently of contract one person must answer for the consequences of his negligence to another, wherever these two conditions are satisfied. (1.) The circumstances must be such as to justify the inference that the .second person had a legal right, derived from the first person or from some extrinsic paramount authority, to occupy the place where those events occurred which are relied upon as constituting his cause of action. (2.) It must be apparent to the first person, considered as a man of ordinary powers of observation, that the position likely to be assumed by the second person in the exercise of the right so acquired with regard to the first person himself or some physical agency organic or inorganic, which was under his control at the time it was brought into the conditions in which it was at the time the accident happened, are such that the second person will be likely to suffer injury if the first person does not take the precautions to prevent that injury which would suggest themselves to a prudent man as being appropriate for that purpose.” The demurrer was properly overruled.

Whether the demurrer to plea 8 was properly or improperly sustained is unnecessary to be determined. If the ruling of the court in this respect be conceded to be erroneous, it was without injury, since it affirmatively appears from the testimony, the oral charge of the court and the written charges given at the request of the defendant,' that it had the full benefit of the defense attempted to be invoked by this plea. And this is true *176with respect to every other plea to which a demurrer was sustained invoking contributory negligence as a defense.

The testimony tends to show that plaintiff’s intestate received the injuries from which he died while at work as a servant of Summers, in defendant’s mine at a place where he had a right to be and ¡that his injuries were caused by the negligence of the servants of the defendant having the control and management of the operation of its ears.

It was admitted on the trial that -Summers -was an independent contractor.

The next insistence is that the servants oif defendant and plaintiff’s intestate at the time of the latter’s injury were fellow-servants and, therefore, there could be no recovery on these counts. Summers being .an independent contractor, the relation of master and servant did not exist between him and the defendant, and neither did it exist between his servants and the defendant .

“lie is to- be deemed the master, who has the supreme choice, control and direction of the servant, and whose will the servant represents not merely in the ultimate result of his work but in all of its details.” — Sherman & R(Afield on the Law of Negligence, § 160.

In section 180 these authors say“The same principles are applied to determine who is a servant for the purpose of settling a question as to the master’s liability or non-liability to him as are applied to the question of his liability for him. Persons who, in a sense, serve another person, but are not his ‘servants’, within the definition heretofore given, stand upon the same footing as strangers. Thus an independent contractor or the servant of such contractor is not within the rule; and he may recover against the employer of such contractor in like manner with a stranger.” And in section 225 it is said : “Mere co-operation, or community of labor and ultimate purpose is not enough to make men fellow-servants. They are not fellow-servants unless they are all under the control and direction of a common master. Therefore, when a servant works side by side with one emploved by his master as an independent contractor, or with a servant of such contractor or the servant of a *177contractor works with the servant of the sub-contractor, they are not fellow-servants, even though they help to do the same work for the benefit of the same ultimate employer.”

The rule is stated in 12 Am. & Eng. Ency. Law page 995, in this language: “Servants of an independent contractor and servants of the principal by whom the contractor is employed are not fellow-servants, although they work side by side in a common employment, if they are not under the control of a common master.” The reason of the rule is obvious. Not being the servant of the defendant there exists no implied undertaking by him that he has assumed the risk of negligence of the defendant’s servants.

Written charges , based upon this hypothesis were therefore, properly refused.

The 12th special plea asserting that plaintiff’s intestate was a mere licensee was not proven.

Under the evidence there is no room for the application of the doctrine of assumed risk. The work engaged in by plaintiff’s intestate was not obviously dangerous.

Whether Summers was guilty of negligence which proximately contributed to the plaintiff’s intestate’s injury was submitted to the jury for their determination. Under the evidence this was clearly a question for the jury. However, whether his negligence, if established, would have defeated plaintiff’s right of recovery is not presented by this record. We therefore, express no opinion upon that question.

No error being shown by the record of which the appellant can complain, the judgment must be

Affirmed.

Dowdell Anderson and Simpson, JJ., concurring