53 So. 76 | Ala. | 1911
It is entirely clear that the second count of the complaint is framed under subdivision 3 of the employer’s liability act (section 3910 of the Code). After stating the common employment of plaintiff and the employee of whose negligence he complains, and that both were acting in the discharge of duty under their employment in or about repairing a furnace of the defendant employer, the count avers that plaintiff went into the furnace where an acid gas or liquid dripped into his eye causing damage. The count proceeds: “Plaintiff further avers that he suffered said injuries and damage, as aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant, to whose orders or directions plaintiff at the time of the injury was bound to conform, and did conform, and said injuries proximately resulted from his having so conformed, viz., said person, whose name is unknown to plaintiff, negligently •ordered or directed plaintiff to go into said furnace without properly and sufficiently warning or informing plaintiff as to said gas or liquid.” The demurrer takes the points, among others, that it does not appear that the person giving the alleged negligent order knew that there was any danger from the gas or liquid; nor that the person giving the order was under any duty to warn the plaintiff of the danger; nor that the order given was a negligent order.
Every complaint for negligence must show a relation between the parties out of which arises a duty owing from the defendant to the plaintiff. Extremest advocates of the modern practice of general and informal allegation in complaints have not yet denied the necessity of averring such a relation. That much shown, we have a long line of cases running back to Leach v. Bush, 57 Ala. 145, which hold that an averment that the defendant negligently failed to do and perform the act imposed by duty sufficiently states a cause of complaint. Mobile & Ohio v. George, supra, is one of them. The liability of an employer to an employee for the negligence of his co-employee not being general, but obtaining only under the special circumstances designated by the statute, a complaint under the statute must of course show circumstances under which the statute authorizes a recovery. And it has been ruled, not without due regard, as we think, for the line of cases referred to and the statute permitting all pleadings to be as brief as is consistent with perspicuity and the presentation of facts in an intelligible form — it has been ruled that a complaint under the employer’s liability act may state conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined, and tried.—Louisville & Nashville v. Jones, 130 Ala. 456, 30 South. 586. Alnd
Complaints in tort for negligence are much dependent upon the use of the word “negligently.” Without regard to the policy of brevity, it would be difficult in many cases to draw a complaint without the use of this word, and where from all the facts that could be stated it would remain for the jury to draw the inference of negligence vel non, the pleader must of necessity draw the inference in stating his case. Accordingly, in glancing over the precedents of complaints in negligence set out in Chitty on Pleading — if we may for a moment look that far back — it is seen that the word is used in nearly every case. This cannot be attributed to inadvertence or mere coincidence, for those precedents were framed at a time when care was required in the preparation of pleadings. We do not for a moment suppose the word to be essential in every case, nor that it may not be ineffectively and inaptly used, but plainly it covers a multitude of omissions and is exceedingly useful.
Appellant contends that the count here in question is bad on the authority of Birmingham Ore & Miming Co. v. Grover, 159 Ala. 276, 48 South. 682, and Johnson v. Birmingham Ry., L. & P. Co., 149 Ala. 533, 43 South. 33, which cases proceeded upon the principle that where a complaint in general terms avers negligence, and then avers the particular act or acts constituting the negligence, its sufficiencv must be tested by the particular al
In Louisville & Nashville v. Wilson, 162 Ala. 588, 50 South. 188, cited by appellant, and doubted by the appellee, count 2 of the complaint ascribed plaintiff’s injury to the negligence of the defendant’s superintendent, who, it was alleged, had superintendence over plaintiff, in that he “negligently failed to properly and sufficiently warn or instruct plaintiff of the danger to him in or about working at or with said machine (a bolt-cutting machine), though, by reason of the youth and inexperience of plaintiff, it was dangerous for him to work at or with said machine without proper and sufficient warning or instruction as to the danger thereof, and though plaintiff in said service or employment was working at or with said machine.” This court ruled that the count was defective for the reason that it failed to aver knowledge on the part of the master, or of the master’s superintendent, that plaintiff was inexperienced. The case is not out of harmony with what has been said nor with the other cases referred to. The plaintiff there relied upon the duty of the master, or his master’s superintendent, to warn or instruct him. Without the allegation of a relation between plaintiff and defendant out of which a duty to warn or instruct arose the averment that the defendant’s superintendent negligently failed to warn or instruct was innocuous to the defendant. Plaintiff was counting upon an injury produced by a cause constituting an ordinary danger of the master’s business. For the protection of other employees it was the duty of the master to exercise due care to ascertain the servant’s in competency, and, if the service involved special knowledge or experience, to employ a servant of knowledge and experience.—Holland v. Tenn. C., I. & R. R. Co., 91 Ala. 444, 8 South.
We recur now to Alabama Company v. Hammond, supra. The second count in that case, the first considered by the court, proceeded upon alternative hypotheses: One was that the danger of the situation into which plaintiff’s intestate was ordered to go was known to Varnon, to whom was committed the authority to order or direct; the other was that Varnon, by the exercise of due diligence, should have known the danger. The entire drift of the opinion goes to show that the learned Chief Justice, who spoke for the court in that case, had in mind the count as affected by the second alternative when he pronounced it bad. It was competent for the plaintiff to aver that Varnon knew of the dan
Mr. Labatt, where, on page 525 of the first volume of his work on Master and Servant, he lays down the facts necessary to be shown by the servant in order to maintain an action against the master on the ground of the non-performance of the duty of instruction or warning, and where he speaks of the master being chargeable with constructive knowledge of the existence of the risk, is speaking of the common-law duty of the master to the servant, the same duty that rests upon a superintendent under the statute, because superintendence involves the duty to care for others, but is not imposed upon a superior servant who merely had authority to give orders. A complaint framed under the common law is to be judged on principles different from those which must obtain in judging a complaint framed under subdivision 3 of the employer’s liability act, as sufficiently appears in Alabama Company v. Hammond; and, however much such distinctions may seem to savor of undue refinement, they are inherent in the subject, and are not to be avoided except by breaking down the judicial function. In the case at bar the negligence counted on is negligence-in giving an order by a superior servant. The knowl
Charges 6 and 9, requested by the defendant, were properly refused. The concluding clause of each of them, construed in connection with the count to which the charges referred, in effect, assumed, or were easily susceptible of a construction which assumed, that plaintiff’s superior' fellow servant, having authority to give orders, but no authority to superintend, might in the line of his employment instruct plaintiff, and put the burden upon the plaintiff of proving the superior employee’s negligence in that particular. But under the evidence plaintiff’s superior employee, on whose negligence the plaintiff relied for a recovery, had no authority or duty to instruct. On that theory of the evidence defendant properly had the general charge on the first count which imputed plaintiff’s injury to the negligence of a superintendent. The duty to instruct was not. intrusted to plaintiff’s superior. In the consideration of the first count defendant had the benefit of the distinction between subsections 2 and 3 of the act, the distinction being superintendence and the mere authority to give orders, by having the court to instruct the jury that the plaintiff could not impose upon his superior a duty not intrusted to him by the common master. That was the effect of the general charge for defendant under that count. Conversely, the defendant could not assume in the consideration of the second count that the superior servant had authority to instruct in order thereby
Under the evidence it cannot be said that the danger from the dripping acid was “an ordinarily usual incident of the work which the plaintiff had undertaken.” Unquestionably, it was an abnormal danger. The hypothesis of charge three was not supported by the evidence.
Charge 7, refused to the defendant, was misleading in two respects. It asserted that under the law and the evidence plaintiff had no business or duties which required him to be on the inside of the furnace. If that referred to plaintiff’s customary duties, it dealt with a circumstance of no significance in the case, whereas, if it referred to plaintiff’s duty after the order was given, it was clearly erroneous. If the order was given, that created business for the plaintiff on the inside of the furnace. Again, the order complained of was not in form of an order. The language of the foreman, according to plaintiff’s evidence, was “Ike Foster says bring his bucket, up there.” Though not in form an order, it was for the jury to say whether, the surroundings considered, it was properly interpreted by the plaintiff as
We find no error in the record.
Affirmed.