Postal Telegraph Cable Co. v. Hulsey , 115 Ala. 193 ( 1896 )

HEAD, J.

The demurrers to the complaint were all general, and, but for the institution of count number six, which states no cause of action at al], would have been properly overruled for that reason, without considering any other. The demurrers go to each count, separately. Count number six shows that plaintiff was a fellow servant with Cobbs, who was charged with the negligence which caused the injury, and yet.fails to bring the negligent conduct of Cobbs within either of the grounds or causes of action specified in the Employer’s Liability Act. The cases, within that act, to which the count more nearly approaches, are those provided in subdivisions three and four. Subdivision three is as follows : “When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employe, at the time of the injury, was bound to conform, and did conform, and such injuries resulted from having so conformed,” the master or employer is liable to answer in damages to such servant or employe, as if he were a stranger, and. not engaged in such service or employment. After stating the injuries, their extent, &c., the count avers, as the cause of action, the following : “And the plaintiff avers that his injuries were caused by reason of the negligence of one Frank A. Cobbs, who was also in the service or employment of the defendant, in this : That in obedience to particular instructions given to the plaintiff by said Frank A. Cobbs, plaintiff commenced to chop upon a tree, upon which another tree had lodged, after having partially fallen, and was chopping thereon when the ■ tree which had lodged as aforesaid, fell upon him and inflicted the injuries aforesaid; and the plaintiff avers that the said Cobbs had been delegated by the defendant with the authority of the defendant in giving the instructions aforesaid; and the said Cobbs was guilty of negligence in this : "that knowing plaintiff’s position, and the position of the tree which had lodged as aforesaid, after having the said plaintiff to chop thereon, negligently failed to inform plaintiff when it became unsafe for plaintiff to further chop on said tree, and by reason of his failure, aforesaid, plaintiff’s said injuries were inflicted.” It is thus seen that .the count does not show, directly or inferentially, that the instructions given to plaintiff by Cobbs were wrongful or negligent, nor that plaintiff was bound to conform to the orders or directions of Cobbs, nor that his injury resulted from having so conformed. The averment is that plaintiff and Cobbs were both engaged in the employment of defendant ; that is to say, were fellow servants under a common master; that, in obedience to particular instructions (rightful in themselves) given him by Cobbs, plaintiff commenced to chop upon a tree, &c., and that Cobbs had been delegated by the defendant with the authority of the defendant in giving such instructions, whatsoever that authority may have been ; and the count then proceeds to allege, that the negligence of Cobbs which caused the injury, was, (not a wrong or negligent order given by Cobbs to which plaintiff was bound to conform and did conform, and that the injury resulted from having so conformed, but) that, after having plaintiff to chop on the tree, he negligently failed to inform plaintiff when it became unsafe for him to further chop on said tree; by reason of which failure plaintiff’s injuries were inflicted.

The language employed in framing the count suggests that it was intended to be brought within the fourth subdivision, and it so appears from the brief; but, obviously, that provision was misconstrued. The provision is that the master or employer is liable to answer' in damages, &c., “when such injury is caused by reason of the act or omission of any person in the service or employment of the master, dune or made in obedience to * * * * particular instructions given by any person delegated with the authority of the master or employer in that behalf.” Here, we see, that the constituents of the right of action given by the provision, as quoted, are, first, that the injury must have been caused by reason of the act or omission of some person in the service or employment of the master, (say, Cobbs, as charged in this count) ; and second, that such act or omission of such person (Cobbs) must have been 'done . or made in obedience to particular instructions given him by some person delegated with the authority of the master or employer in that behalf. The delegation .of authority here spoken of, is not to the person whose “act or omission” caused the injury (Cobbs), but to some other person who was authorized by the master, to give the servant, (Cobbs) whose act or omission caused the injury, particular instructions to do the act or suffer the omission. Reading the. count, in question, we see it proceeds entirely upon affeged instructions to chop the tree, given to the plaintiff by Cobbs, — another employe— who had been delegated by the master with his, the master’s, authority in giving such instructions, followed by allegations of subsequent and independent omissions of duty on the part of Cobbs,- alleged as constituting the plaintiff’s cause of action. The giving of the instructions mentioned, by Cobbs, exerts no possible influence upon the cause of action so alleged. They simply put the plaintiff to work upon the tree, so far as appears, in a lawful and proper manner. The negligence of Cobbs arose afterwards, in the prosecution of the work,

We have duly considered whether the count could, by any reasonable intendment, be treated as containing a cause of action at common law. The only difference in the nature of Cobbs’ and plaintiff’s employment, was, that Cobbs was authorized to give instructions to plaintiff to do the work in question, while he, the plaintiff, was employed to labor in building the telegraph line, under all proper directions. This, most clearly, did not constitute Cobbs a vice-principal.—Railway Co. v. Smith, 59 Ala. 245 ; Tyson v. Railroad Co., 61 Ala. 554 ; Smoot v. Railway Co., 67 Ala. 13 ; Railroad Co. v. Allen, 78 Ala. 494; Railroad Co. v. Davis, 92 Ala. 300. The plaintiff and he were no more than fellow servants, under the averments of this count. *

The second plea set out no facts constituting contributory negligence, and was bad for that cause.

The issues made up for trial may be thus stated, and to them all proper evidence and instructions must have related: The complaint, in the first three counts, is upon subdivision two, and, in the fourth and fifth counts, upon subdvision three of the Employer’s Liability Act. The three counts, in the first class, all show by proper averments, that -one Frank A. Cobbs was, within the meaning of the statute, entrusted with superintendence, and that the plaintiff’s injury occurred by reason of negligence on his part, whilst in the exercise of such superintendence. They show that defendant was engaged in building or equipping a telegraph line, removing trees, erecting poles, wires, &c., and that plaintiff, an employe, was injured by a tree falling on him, in the prosecution of this work, under the superintendence . of Cobbs.

The wrong attributed to Cobbs by the first count is, that he negligently ordered the plaintiff to go and chop and fell a tree upon which another tree had lodged ; and plaintiff obeyed and commenced chopping on said tree, when the tree which was lodged theréon fell upon him, inflicting the injuries complained of. Though .this count is expressly based, by a general averment, upon ,the negligence of Cobbs, in the exercise of a superintendence, under the second subdivision, yet we see the wrongful act chai-ged was the negligent giving of an order, for which subdivision three provides, without alleging that plaintiff was bound to confirma to the order. But, as we have said, the demurrers are so general we cannot consider them, and we will, by the allowance of intendments, refer the negligence charged to the second subdivision, under the general averment of negligence in the exercise of superintendence.

The wrong attributed to Cobbs, as superintendent, by the second count, is, that after having ordered and directed the plaintiff to fell a tree upon which another tree had lodged, he negligently failed to watch the tree upon which plaintiff was chopping, and the tree which had lodged thereon, while the plaintiff was engaged in chopping the first named tree, so as to give plaintiff | warning when it became dangerous for him to chop longer on said tree, and by reason of such negligence, the tree which had lodged, as aforesaid, fell upon plain- | tiff, &c.

The third count charges that Cobbs, knowing that I plaintiff was chopping, &c., &c.\ as above stated, negliI gently failed to warn plaintiff when it became dangerous Ito chop longer on said tree, and negligently allowed [plaintiff to continue chopping thereof, until the tree [upon which plaintiff was chopping became so weakened [by the chopping, aforesaid, that it would no longer hold lup the tree which was lodged thereon.

The wrong charged in the fourth count is that Cobbs mdered plaintiff and other hands to chop on said tree, lescribed as aforesaid.

The wrong charged in the fifth count is two-fold in the averments of negligence, but single as to the cause l)f the injury — the latter being simply the giving of the prder as charged in the fourth count; so that, the fourth n,nd fifth counts are, in legal effect, the same.

All these charges of negligence were met by the defendant, first, by the general denial; second, payment, or accord and satisfaction before suit brought; and third, by contributory negligence, specially set up in plea number four and plea unnumbered.

The negligence set up in said plea number four is, that plaintiff undertook to cut down or chop a tree on which another tree had lodged, which undertaking was, in itself, dangerous and known to be dangerous by the plaintiff, and negligently failed to keep a watch and lookout while chopping it, &c.

The unnumbei’ed plea alleges the contributoiy negligence to have been, that while cutting down a tree on which the weight of two other trees was resting, and whexi the tree on which he had beexi cutting was in the act of falling, the plaintiff, instead of stepping backwards or to one side, negligexitly moved in the direction in which one of the trees was leaning, thereby placing himself in danger, so that said tree fell on him.

The plaintiff xnet all these pleas by the general replication ; and met the fourth, also, by replication in special forxn, alleging, as in the complaint, the relation of Cobbs, as supex-intendexit; that he ordered and directed plaintiff to fell a tree upon which axiother tree was lodged, as set out in the complaint, axid assured plaintiff that he would keep a watch-out for plaintiff while chopping said tree, axid would warn plaintiff when it became dangerous to continue chopping thereat; wherefore, plaintiff says, he was relieved of the xxecessity and duty of keeping a watch-out himself for said tree. After demurrer overruled (which rxxling is xiot assigned as error) the defendant joined issue on this replication.

The questioxxs reserved by the bill of exceptions relate to the admission of evidence axid giving and refusal of instructions.

The evidence to which the third assignment of error relates, was improjier, and rightly disallowed. It was not material whether plaintiff saved anything out of the wages referred to or not.

If by reason of any facts known to defendant’s witness, Cobbs, his coxitinued empkymexit by the defend ant depended upon the success of the defendaxit in this suit, it was certainly competent for the plaintiff to prove it, after Cobbs had testified in the cause for, and favorably to, the defendant. It was a fact the jury could properly consider in determining what weight to give Cobbs’ testimony .

Under the principle declared in Campbell v. State, 23 Ala. 76, and Johnston v. State, 102 Ala. 1, it was competent for defendant, under the circumstances shown by the bill of exceptions, to aslc its witness (Cobbs) what his reasons were for the interest he felt in the case. The court erred in sustaining the objection to the question.

The other exceptions relating to evidence, are not specially insisted upon in the brief of counsel, and we do not consider them.

The bill of exceptions fails to recite that it contains all the evidence. It is the rule, in such cases, that the court will presume any state of evidence which would sustain the giving or refusal of an instruction by the trial court.

At the request of the defendant the court gave the following charge : “In the absence of orders , from Cobbs as to what direction Hulsey should run, it was the duty of Hulsey to run in a safe direction, if the jury find from the evidence there was a safe way to run.” Afterwards the court said to the jury : 1T read you a charge requested by the defendant which I wish to withdraw. The charge reads as follows,” (reading as above). “I refuse that charge for this reason and so on, proceeding to,give reasons and announcing certain propositions, as law governing the case. The defendant excepted generally to all the court said, specifying no particular portion. It is clear there was no error in withdrawing the said charge and refusing it. That charge made it the absolute duty of the plaintiff to have run in a safe direction, if there was one, without regard to the circumstances under which he was called upon to act, and whether he acted as a reasonably prudent and cautious man would, or might naturally have acted, or not. The plaintiff could not thus be made, absolutely, an insurer of safety in the direction he might take to avoid the danger. This part of the court’s remarks to the jury was distinct from other propositions announced, and independently correct; whereby the general exception to the entire instruction is unavailing, though there may have been error in some other parts. We do not look to see whether or not there was such an error.

Charges number 1, 4, and 5 requested by defendant contained the same vice as that above commented on, and were properly refused.

Charge number six pretermits all inquiry whether Cobbs was negligent in not sooner discovering plaintiff’s danger — a default expressly charged in some of the counts of the complaint.

It is the opinion of the Chief Justice and the writer, that charge number twelve would deny recovery to every person who engaged in business at all dangerous, or which might probably result in injury to him, merely because he did so engage, without regard to the negligence of the defendant (short of willfulness) which might'have caused the injury. The other members of the court, however, think, and so hold, that the charge abstractly considered excludes all negligence of any character, on the part of the defendant, as causing the injury, and therefore asserted a correct proposition of law ; but they further hold that the charge was so general on that point that it was liable to mislead the jury and was properly refused for that reason.

The same observations apply to charge 13, requested by defendant.

General charges two, three and ten can not, of course, be considered when it does not appear that all the evidence is before us.

Reversed and remanded.