62 So. 459 | Ala. Ct. App. | 1913
— Plaintiff (appellant) originally set up his cause of action in a complaint containing five counts, and each count declared or relied upon the relation of master and servant existing between the defendant and plaintiff. The first count alleged a breach of the common-law obligation of the master to furnish the servant a safe place to work. The second count was under subdivision 2 of the Employer’s Liability Act (Code, § 3910). The third count was under subdivision 3 of the same act. The fourth count charged a wanton or intentional wrong under subdivision 2; and the fifth count was framed under subdivision 3, charging a wanton or intentional injury. Demurrers to the first, fourth, and fifth counts, based on the ground, principally it seems, that these counts contained alternative aver-ments rendering them demurrable, were sustained by
These counts splitting up the alternative averments contained in the same counts of the original complaint and setting them out in different counts of the amended complaint entailed no additional burden on the plaintiff in presenting his case on the trial; and, as they contained every averment declared on originally in' the complaint filed by him and permitted the plaintiff to present every phase of his case without additional burden, the ruling of the court on the demurrers to the original complaint, if error, would be without injury, and a discussion of the assignments of error based on these rulings is unnecessary. — Carleton v. C. of Ga. Ry. Co., 155 Ala. 326, 46 South. 495, 16 Ann. Cas. 445.
The appellee insists that a consideration of the whole case will show that the plaintiff was not entitled to recover, and that, as the court would have been justified in giving the general charge for the defendant, any errors committed in the progress of the trial would.not be prejudicial or authorize a reversal of the case. This contention of the appellee is based on the proposition that, as each count of the plaintiff’s complaint relies on the relation of master and servant as existing between the parties at the time of the injury, there could be no recovery in that the undisputed evidence shows such a relation did not exist.
It appears from the evidence set out in the bill of exceptions that the defendant was engaged in the shipping business, operating a line of vessels carrying freight to and from the port of Mobile, and that, while a load of lumber in cars on the wharf was being loaded aboard
The evidence, we think, establishes the relation of master and servant between the defendant and the plaintiff. The superintendent, Erickson, and the foreman, Bonneau, both had the right to give, and in actual practice and fact did give, directions and orders to the colored foreman, Lynch, who was under their control and direction, and through whom they had the power to control the selection, and discharge of the men picked up by Lynch, who was not an independent contractor, but an employee of the defendant, having authority as part of his duties to employ and discharge workmen; and in performing this service he was acting for the master, his employer, in the nature of a vice principal. —A. G. S. R. R. Co. v. Vail, 142 Ala. 134, 38 South. 124, 110 Am. St. Rep. 23; Smith v. Pioneer Mining & Mfg. Co., 146 Ala. 234, 41 South. 475; L. & N. R. R. Co. v. Lile, 154 Ala. 556, 45 South. 699.
Nothing that is said in the Alabama cases cited by the appellee in the least militates against our position as above stated. What is said in those cases as to what does and what does not establish the relation of master and servant has reference to the existence of that relation between the parties when the servant is under the management, orders, and control of an independent contractor of the master; when the servant, in other words, has another master. An examination of each of the
The evidence shows that the plaintiff at the time of receiving the injuries complained of was on the deck of the ship> engaged with other members of the loading, gang in and about his duties of stowing up the lumber; that the ship was being loaded at night; that a long, heavy piece of lumber, a deal about 2 by 12 or 2 by 6, slipped from the sling load being drawn aboard by means of a hoisting apparatus consisting of block and tackle, etc., operated by an engine and ‘winch, and fell end down in an upright position, jammed in between the ship’s side and the wharf. When the remaining portion of the sling load was lowered to the deck, the plaintiff and others in his loading gang were ordered by the foreman Lynch, to whose orders they were bound to conform, “to stow up the lumber,” and, while the plaintiff was engaged in the particular duties necessarily attendant upon the performance of this order, those in
The testimony is in conflict as to whether or not this gangwayman at the time he gave the winchman the order to go ahead also gave a warning to the gang on deck engaged in stowing the lumber or allowed the piece of timber to be pulled up and fall on the plaintiff, one of the gang, without warning. Mingo, a witness for the defendant, and one other of defendant’s witnesses testified that the warning was given, and several of the plaintiff’s witnesses testified that no warning was given. Mingo, however, testified, on cross-examination by the plaintiff, that he did not hook the tackle onto the deal properly; that he hooked it too near the middle. It was shown that the natural consequences of such an improper hooking and then giving an order to go ahead with the hoisting machinery were that the piece of timber when raised would overbalance as it came aboard and “sweep the deck,” as it did in this instance, causing the injury to plaintiff complained of.
As Mingo must have known that this overbalancing and “sweeping the deck” would result from his manner of hooking on when he gave the order to the winchman to go ahead, and as there was evidence affording a basis for an inference from which the jury might reasonably find that Mingo knew that the laborers, including the plaintiff, were on deck engaged in the duties of their employment at a place where they would likely be
This action of the trial court, however, would not authorize a reversal of the case, for the record affirmatively shows that the entire evidence, including that introduced in support of those counts of the complaint alleging the injury to have been wantonly or intentionally inflicted, was submitted to the jury on the counts alleging simple negligence, and yet the jury found the issue of negligence on the whole evidence in favor of the defendant. The act of negligence relied npon was included in and formed a part of the conduct of defehd-ant’s employee complained of as amounting to a wanton infliction of the injury; and, when the jury found the issue of negligence in favor of the defendant, then, under the evidence in this case, they virtually, in effect and in fact, determined the question of wan ton ness, for the wanton act was predicated upon the negligent act that was a part of it, and the former could not exist in the absence of the latter. In other words, the charge
Charge No. 17 is a good charge, and giving it would not constitute error even if, as contended by appellant, the charge ignored the counts which charged wanton injury, which we do not think was the effect of the charge.
Count No. 2 of the complaint, as amended, alleges the injury to be due to the negligent failure of the master to keep the place on the deck of the vessel in which the servant performed his labors in a reasonably safe condition ; and charge No. 19, given at the request of the .defendant and limited in its application to that count, states a correct proposition of law. This count of the complaint is not based on the negligence of some one in the employ of the defendant having superintendence intrusted to him, or for whose negligence the defendant
The ruling on the evidence complained of does not constitute prejudicial error. The question propounded to the witness Bonneau, “Was it or not an ordinary way of doing this work, the way that it was done in this case?” was not objectionable for the general reasons assigned; however, proof of the same matters called for by this question had been previously repeatedly made by other witnesses without objection, and there was no evidence of a contradictory nature on this point offered. The plaintiff himself testified: “It was a common thing for a piece of lumber or scantling to fall between the ship and wharf, and that was the way they always got it out; that it almost always overbalances, and I knew that.”
It is not prejudicial error to allow the same fact to be again shown against objection Avhen it has already been shown without objection. — Falkner v. State, 151 Ala. 77, 44 South. 409.
We have carefully examined the evidence set out in the bill of exceptions in connection with the assignment of error based on the refusal of the court to grant the
Affirmed.