Sloss-Sheffield Steel & Iron Co. v. Triplett,

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Notebook

| Ala. | Jan 16, 1912

Rehearing

ON APPLICATION FOR REHEARING.

The court adheres to its former ruling in this case. The decision of this court that count 13 in the case of Merriweather v. Sayre Mining and Manufacturing Company, 161 Ala. 441" court="Ala." date_filed="1909-05-20" href="https://app.midpage.ai/document/merriweather-v-sayre-mining--mfg-co-7364287?utm_source=webapp" opinion_id="7364287">161 Ala. 441; 49 South. 916, was demurrable ivas that in using the words “as was his duty to do” the pleader asserted that it was the absolute duty of the defendant to furnish a reasonably safe place, *261instead of alleging his duty to be to use reasonable care and skill to furnish a reasonably safe place. In the subsequent case of Smith v. Watkins & Donelson, 172 Ala. 502" court="Ala." date_filed="1911-05-18" href="https://app.midpage.ai/document/smith-v-watkins-7365675?utm_source=webapp" opinion_id="7365675">172 Ala. 502, 55 South. 611, the allegation was simply “that the defendant negligently failed to provide the plaintiff with a reasonably safe place for him to perform the duties of his employment,” and the court held that the word “negligently” Avas the equivalent of the averment “that' he failed to exercise reasonable skill and care,” etc., differentiating the count from that in the Merriweather Case, in that in said last case there was no averment of the absolute duty.

Count 4 in the present ease is defective (according to the Merriweather Oase) in alleging that “it was the duty of the defendant to furnish him with a reasonably safe place,” etc.; but neither of the causes of demurrer points out that defect.

Appellant insists that cause 8% points out the defect, but that cause avers the negative, that “it is not averred therein that defendant negligently failed to use reasonable care to provide a reasonably safé place,” Avhich is not the same as would have been an allegation of the positive defect in alleging “that it was the duty of the defendant to furnish him Avith a reasonably safe place,” etc.

All the Justices concur.

Lead Opinion

SIMPSON, J.

This case is referred to this court by the Court of Appeals to decide whether or not count 4 of the complaint is subject to the demurrer interposed to the same. As shown by the record and reference, said count alleges that “it was the duty of the defendant to furnish him with a reasonable safe place in which to work and perform his duties.”. Under the decisions of this court, the expression quoted does not correctly state the law, as the duty to afford the servant a reasonably safe place in which to work is not unqualified.”—Meriweather v. Sayre Mining & Manufacturing Co., 161 Ala. 442, 49 So. 916" court="Ala." date_filed="1909-05-20" href="https://app.midpage.ai/document/merriweather-v-sayre-mining--mfg-co-7364287?utm_source=webapp" opinion_id="7364287">49 South. 916, 920; Huyck v. McNerney, 163 Ala. 244" court="Ala." date_filed="1909-11-18" href="https://app.midpage.ai/document/huyck-v-mcnerney-7364524?utm_source=webapp" opinion_id="7364524">163 Ala. 244, 50 South. 926.

The case of Smith v. Watkins & Donelson, 172 Ala. 502, 55 South. 611, draws the distinction between the count in this case and one which does not contain any such statement as to the duty of the master. However, neither of the causes of demurrer assigned points out the defect in count 4. Consequently the count was not subject to the demurrer.

All the Justices concur, save Dowdell, C. J., not sitting.'