Laughran v. Brewer , 113 Ala. 509 ( 1896 )

HARALSON, J.

1. The first count is one for simple negligence under the common law. When construed by the rules for pleading under that system, this count is entirely too general and lacking in averments of facts upon which an issue could be taken. But that rule has been greatly relaxed .under our Code system of pleading, in cases where the cause of action consists in the non-performauce or misperformance of a duty. In such cases, the rule as now obtaining is, “When the gravamen of the action is the alleged non-feasance or misfeasance of another, as a general rule, it is sufficient if the complaint avers facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, &c.; not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty.”-Ensley R. Co. v. Chewning, 93 Ala. 26; M. & O. R. R. Co. v. George, 94 Ala. 214; Mary Lee C. & R. Co. v. Chambliss, 97 Ala. 171. Again it has been said, and may be regarded as the settled rule in this court, “that under our system of pleading, very general averments, little short, • indeed, of mere conclusions, of a want of care and consequent injury, leaving out the facts which constitute and go to prove negligence, meet all requirements of the law."-Ga. Pac. Railway Co. v. Davis, 92 Ala. 307, and authorities there cited; Stanton v. L. & N. R. R. Co., 91 Ala. 384; M. & O. R. R. Co. v. Thomas, 42 Ala. 673.

In the first count, it is averred among other things, that the right hand of plaintiff “was caught in between a belt and pulley and his right hand was thereby crushed; * * * * and that the hand and arm of the plaintiff was caught in said belt or between the same, and said wrongs or injuries were suffered, because of the wrong or negligence of the defendant in having and running in said mill in said business, belts, pulleys and shafting, machines and appliances which were defective, out of order and unsafe, and unfit to be in said business, and which, but for the want of proper care and diligence, would have been known to defendant, and all of which was unknown to plaintiff,” &c. The gravamen of this count evidently is, the alleged defects in the belts and pulleys, and their unsafe condition. Under our rulings, we apprehend this count was good ; and the demurrer to it should have been overruled.

The count was amended, however, by filing an additional one as count 5, which is the same in its recitals as the first, but in which it is averred in addition, by way of more sx^ecific averment of the manner in which the injury occurred, that the plaintiff’s injuries were suffered “because of the wrongs and negligence of the defendant in having and running in his mill in said business, said belt and pulleys which were defective, out of order, not properly arranged and adjusted, and unsafe and unfit to be used in said business, and which but for the want of proper care and diligence would-have been known to defendant, and all of which was unknown to the plaintiff,” &c. The demurrer to this count was overruled. Under it, in the trial of the cause, the plaintiff, without the imposition of new burdens, had the benefit of all he could have had, if the demurrer to the first count had not been sustained. So, the sustaining of that demurrer was error without injury.-Gilman v. Jones, 87 Ala. 691; Espalla v. Wilson, 86 Ala. 487; Phœnix Ins. Co. v. Moog, 78 Ala. 284.

2. The third count of the complaint is drawn under subdivision one of section 2590 of the Code. It alleges, that the plaintiff being in the employment of the defendant in his paint shop or mill, and while so employed was injured &c., “which injury was caused by reason of defects in the condition of the works, machinery or plant used in the business of the defendant aforesaid, which defects were not known to plaintiff, and arose from, and had not been discovered or remedied owing to the negligence of the defendant,” &c.

In L. & N. R. R. Co. v. Hawkins, 92 Ala. 243, touching the particularity of averment necessary to be averred in a count under this section and subdivision of the Code, it was said : “There is no reason, however, for requiring a greater degree of particularity in the averment of negligence under this statute, than is required with respect to any other negligence counted on for a recovery of damages ; and the ‘facts’ to be alleged in either class of cases are little, if any, more than a mere conclusion of the pleader, leaving the factors which enter into and support the conclusions to be adduced in the evidence.” And in M. & O. R. R. Co. v. George, 94 Ala. 216, approving what was said in Hawkins'1 Case, it was added : “An allegation, pursuing the words of the statute, or substantially the same, is sufficient, but this much is required.”-C. & W. R. Co. v. Bradford, 86 Ala. 574; E. T., V. & G. R. R. Co. v. Watson, 90 Ala. 41.

A demurrer was improperly sustained to this 3d count. Thereupon, the plaintiff filed another count, numbered 6, which was an amendment of the 3d count, in which the defect in the machinery complained of was specified, a demurrer to which amendment was overruled. The plaintiff got or could have had, under this amendment, the benefit of all the proof he was entitled to under the 3d count. It imposed no additional burden. The sustaining of a demurrer to said count was, therefore, error without injury. — Authorities supra.

3. The 4th, 7th, 8th and 9th counts of the complaint were framed confessedly under sub-section 4 of said section 2590. The fourth count charges the injury to be the result of an “omission of the engineer in charge of the engine, which was then and there driving and running the machinery of said shop, * * * to obey the rules and regulations of the defendant made to govern and regulate the stopping and starting of said engine.”

The 7th charges it as “caused by reason of the omission of a person, to-wit, the engineer in charge of the engine which drove said pulley, to obey the signals given him in accordance with the rules and regulations of the master or employer, the defendant,” &c.

The 8th charges it, as “caused by reason of the omission. of a person in the service and employment of the defendant, to-wit, the engineer in charge of the engine and pulleys and machines in said shop or mill, to let said engine stand still after being stopped till he received the proper signal to start said engine again, as by the rules and regulations of the master or employer, the defendant, he was required to do,” &c.

The 9th, that the injury was caused.by the act of a person, to-wit, “the engineer in charge of the engine which drove the machinery in said mill, through shafts, pulleys and belts, in starting up said engine, after he had stopped it in obedience to a signal made him under the rules and regulations of defendant, and before he had received any signal to start said engine as required by the rules and regulations of the master, the defendant.”

At common law, the rule was, that for injuries proceeding from the personal fault or negligence of the master, he was under the same liability to his servants as to third persons toward whom he sustained no special relations ; but he was not liable for injuries caused by the negligence or fault of other servants in the same employment, if the master had not been negligent in the employment of incompetent persons. The risks incident to the common employment, each servant was presumed to have contemplated when he entered the service.-M. & M. Railway Co. v. Smith, 59 Ala. 245; Smoot v. M. & M. R. Co., 67 Ala. 13; Stewart v. L. & N. R. R. Co., 83 Ala. 495; L. & N. R. R. Co. v. Allen, 78 Ala. 502; Ga. Pac. Railway Co. v. Davis, 92 Ala. 313; A. G. S. R. R. Co. v. Carroll, 97 Ala. 129; M. & O. R. R. Co. v. Thomas, 42 Ala. 672; L. & N. R. R. Co. v. Woods, 105 Ala. 569.

The foregoing principle as to the employer’s liability still prevails in this State, and he is not and cannot be made liable, under the Employer’s Liability Act, unless the case falls within one of the categories named in the five subdivisions of the said act.

In each of these counts the negligence complained of was that of a fellow servant of the plaintiff, and, as we have said, it is admitted and insisted, that the said counts are drawn, and are good under subdivision 4 of said section of the Code. The provisions of said subdivision are, in substance, that the act or omission of the employe complained of, must be done or made in obedience to the rules of the master. In other words, when the master commands or instructs, by rules and regulations and by-laws of himself, or in obedience to particular instructions given by any person delegated by him, with his authority in that behalf, and an employe obeys and carries out such commands or instructions, and injury is done thereby to a fellow employe, the master is liable. The statute has reference, by its terms, to the instructions of the master, and makes him responsible for them ; and when he commands that an act be done or omitted to be done, and the servant obeys in doing the thing commanded to be done, or in omitting to do what he was ordered not to do, his obedience in either case is the act of the master, and if injury results he is liable ; but, if the servant disobeys the instructions so given him, by doing something else that he was not instructed to do, or omits to obey instructions at all, and injury to his fellow-servant is the result, it is not the act or command of the employer that caused the injury, but the disobedience of the employe, and the master is not liable. ITe stands in such a case as he stood, and is liable, if at all, at common law, unaffected by the Employer’s Liability Act.

In each of these counts, the averment is, in substance, that the injury was caused by the disobedience of the fellow-servant of the rule of the master ; exactly opposite to the requirements of the statute to render him liable thereunder. Neither count states any cause of action under said subdivision 4 of section 2590 of the Code.-Lovell v. DeBardelaben C. & I. Co., 90 Ala. 13, 17.

Issue was taken on the pleas, demurrers to which were overruled, and trial had thereon.

The minute entry as shown in the abstract, in reciting the verdict of the jury, states it: “We, the jury, find the issue in favor of the plaintiff.” It then concludes with a judgment in favor of the defendant against the plaintiff for costs. The plaintiff appealed and assigned as grounds of error the rulings of the court sustaining the defendant’s demurrers to the several counts of the complaint. There is no bill of exceptions in the case. The word “plaintiff,” as used in the abstract of the verdict is, as appears, a clerical error, self-corrective, and should be read “defendant.” We find no error in the rulings of the court, prejudicial to plaintiff, and its judgment is affirmed.

Affirmed.