Warrior-Pratt C. Co. v. Shereda,

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| Ala. | Apr 24, 1913

Lead Opinion

McCLELLAN, J.

— The complaint, as amended, contained four counts. All of these carried the material averment of relation of master and servant between plaintiff (appellee) and defendant (appellant) at the time plaintiff was injured by the falling of rock from the roof of the mine. Only counts 2 and 4 were passed to the jury. These were drawn under the first sub*123division of the Employers’ Liability Act (Code 1907, § 3910). Neither of these counts was subject to the demurrer. Both sufficiently, under our rule, allege and describe a defect in the condition of the ways, works, etc., of the defendant’s mine, and conclude in the words of the statute whereby negligence is charged, as upon that defective condition, to have proximately caused plaintiff’s injury.

We are not able to find in this record any evidence, or legitimate inference from the evidence, tending to support the allegations of relationship of master and servant between plaintiff and defendant when he was injured. The application to the evidence here, of the accepted and often reaffirmed doctrine of Harris v. McNamara, 97 Ala. 181" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/harris-v-mcnamara-6514918?utm_source=webapp" opinion_id="6514918">97 Ala. 181, 12 South. 103, and Lookout M. I. Co. v. Lea, 144 Ala. 169, 39 South. 1017, defining an independent contractor, leaves no doubt that the relation, in employment, alleged did not exist when the injury occurred. The sum of that evidence is that plaintiff engaged to mine coal in defendant’s mine, at a stated rate per ton, at a place and within the limits fixed by defendant’s superintendant. It is not shown, in any degree, that defendant or its representatives had any control or direction in respect of the details of the mining, of when or how plaintiff should do what he had engaged, as stated, to do. There is no presumption that he was a servant rather than a contractor. The burden was assumed by and was upon him to show that he bore at the time the relation of servant, in order to avail of the statute’s provisions. He has not shown that defendant had “control over the means and agencies” by which the mining of the coal in the area of his labors “was to be produced.” Accordingly the defendant was entitled to the general affirmative charge requested by it.

*124And upon the like considerations the court erred in the excepted to extract from the oral charge quoted in the twenty-fourth assignment of error. The plaintiff could not recover, under the complaint, unless he was shown to be a servant of the defendant.

The court also erred in restricting the defendant in its effort to show the full, whole contract or agreement between plaintiff and defendant. If they engaged to the “usual” effect “for driving rooms” in that mine, the terms that engagement comprehended were proper matters for the jury’s consideration.

There was irreconcilable conflict in the testimony upon the issue whether the rock which fell upon plaintiff came from the roof of the entry, where there was evidence tending to show that it was defendant’s duty to inspect for and remove dangerous rock or coal, or from the roof of the room or room neck in which there was testimony tending .to show it was the miner’s duty to inspect for and remove dangerous rock or coal. If the pleadings upon another trial again present that issue, all evidence calculated to discover the respective duties of mine operator and miner with respect to inspection for and the removal of loosened rock or coal should be received. On this trial the court appears to have unduly restricted the evidence in that regard. It may be quite material to determine at what point (if so) between the entry and the room neck or room the duty of inspection and care in this regard closed for one and began for the other, and equally as material to determine exactly wherefrom, with reference to the roofs of the entry, room neck or room, the rock causing the injury fell, or at what point, if so, with like reference, the initial leaning of the rock from its place above occurred.

*125Whether the entry from the roof, of which there was evidence tending to show the rock in question fell, was driven with due care and skill was the proper subject of inquiry of the expert witness, Robert Neil.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.

Rehearing

ON REHEARING.

McCLELLAN, J.

— In an exhaustive argument appellee insists the court is in error in finding that there is no evidence, nor inference from evidence, in this record tending to support the material averment of the existence, at the time of injury, of the relationship of master and servant between the plaintiff and defendant. The argument, and authorities cited, have been carefully examined and considered. In addition the court en banc has re-read the entire record touching this point of controversy. The doctrine of the cases noted, in this connection, in the original opinion is manifestly sound. That that doctrine is applicable to the case at bar does not, in the judgment of the court, admit of doubt. When to the entire evidence offered and admitted is applied the doctrine summarily stated, as upon the cases cited, in the original opinion, the conclusion is, in our judgment, unescapable that there is an entire want of evidence tending in any degree to establish the relationship alleged. The bare allusion in the testimony of Lillich to the presence of a person representing an insurance company, and the statement by the witness that he “sent into the mine and brought the men out who knew about the accident,” to plaintiff, did not tend to show that the company had insured to protect itself from damages for injury to the plaintiff. By whom the in*126surance referred to was effected was left entirely unstated.

Counsel for movant for rehearing are correct in their suggestion that there was no insistence in brief for appellant upon the exceptions, assigned for error, taken because of the denial to it of the opportunity to show the terms of the contract between plaintiff and defendant. Had that matter been the sole error committed by the trial court, of course a reversal could not have been predicated of it. However, since a reversal was. found necessary on the major proposition arising out of the erroneous refusal to defendant of the general affirmative charge, it was not thought amiss to indicate, in a general way, other errors which to avoid on the succeeding trial appeared desirable.

The exception in this connection was reserved during the examination in chief of Lillich, and not on the cross,, as movant’s brief seems to assert.

The twenty-fourth assignment of error complained of a part of the oral charge of the court, and this assignment was urged for error on pages 7 and 8 of the brief for appellant, filed on original submission.

The application for rehearing is denied.

Dissenting Opinion

SAYRE, J.

— (dissenting).—I concur in the reversal for other reasons; but I cannot assent to the proposition that the general charge should have been given on the ground that plaintiff failed to show thht he was an employee rather than an independent contractor. Plaintiff assumed the burden of proving that he was an employee of course. But when plaintiff proved his employment as a manual laborer to dig coal, prima facie he showed that he was an employee within the meaning of the Employer’s Liability Act, and the fact that he was paid by the ton was not sufficient to make of bim *127an independent contractor as matter of law. On the facts proved, and on the common implications of the language used by the witnesses, I think the question whether plaintiff was an employee within the meaning of the statute was properly submitted to the jury.