Alabama Great Southern Ry. Co. v. Cardwell , 171 Ala. 274 ( 1911 )

MAYFIELD, J.

A count under subdivision 2 of the employer's liability act, to be sufficient to withstand appropriate demurrer, must allege, in effect, that the injury complained of was caused by reason of the'negligence of some person in the service of the master, who had some superintendence intrusted to him, whilst in the exercise of such superintendence.. It must do so because the statute says so. ■ Subdivision 2, § 3910, Code 1907. Unless the negligent servant is intrusted by the master with some superintendence, and unless the negligence complained of occurred whilst he was in the exercise of such superintendence, there can be no. liability under the second subdivision, no matter wha-t other liability may result. It is as necessary to liability under this subdivision that the negligence occur whilst in the exercise of superintendence as that the negligent superintendent be intrusted with superintendence. The statute expressly makes both requisite to liability, and the courts cannot dispense with either.

A count, under our Code system, in order to be good against an appropriate demurrer, must contain a logical statement of the cause of action. It must state all the facts which constitute plaintiff’s right, and his injury, and the consequent damages, and must state them with certainty, precision, and brevity. A general statement- of facts which admits of almost any proof to sustain it is objectionable. There are, however, some exceptions, not necessary to be mentioned here.

When the law lias affixed appropriate and technical terms to describe a crime or a. statutory right of action, it is always safest to follow those terms which the statute prescribes. As said by Lord Coke, it is safer to follow good precedents, for nihil simul inventum est, et perfectum. No averment, need be made which the law does not require to he proven; hut all the substantial facts necessary to constitute the cause of action must he stated with substantial certainty. What was said by the Supreme Court of Massachusetts relative to the practice act of that state is applicable to our Code system of pleading.

Facts must be set forth with certainty, so that they' may be understood by the party, who is to answer them, by the jury, who are to ascertain the truth of the allegation, and by the court, who is to give judgment thereon.—Reed v. Smith, 1 Allen (Mass.) 521, 522; Brettun v. Anthony, 103 Mass. 40; 1 Chitty, Pl. pp. 256, 331. Likewise the Supreme Court of North Carolina, speaking of the Code pleading, says: “We take occasion here to suggest to pleaders that the rules of the common law as to' pleadings, which are only rules of logic, have not been abolished by the Code. Pleadings should not state the evidence, but the facts, which are the conclusions from the evidence, according to their legal effect, and complaints should especially avoid wandering into matter which if traversed would not lead to a decisive issue.”—Crump v. Mims, 64 N. C. 771.

Another rule of pleading common to both code and common-law pleadings is that everything must be taken most strongly against the party pleading. If the meaning be equivocal, and two meanings present themselves, that construction' shall be adopted which is most unfavorable to the party pleading, because it is to be presumed that every person states his case as favorably to himself as possible.

For example, take the counts in this case seeking to declare under the second subdivision of the employer’s act. They do not allege that the negligence of the superintendent occurred whilst he was in the exercise of such superintendence, yet the statute only makes the master liable under this subdivision, when the negligent act of the servant causing the injury is that of a person intrusted with superintendence, and then only when he is in the exercise of such superintendence. While the counts do allege that the negligent person was intrusted with superintendence, they do not allege or attempt to allege that the negligence was in the exercise of the superintendence intrusted to him. If it appears from any of these counts that the superintendent Avas in the exercise of superintendence Avhen he committed the negligent acts complained of. it rests in inference only, for there is no allegation of such fact. Material allegations cannot be left to inference; they must be distinctly alleged, to Avithstand an appropriate demurrer.

A complaint or declaration being the statement in a logical form of the facts Avhich constitute the plaintiff’s cause of action, a count under subdivision 2 of the employer’s act must state the facts which constitute plaintiff’s cause of action under that subdivision. Whatever facts or circumstances are necessary to constitute the cause of action must be stated. All others are unnecessary. Facts only are to be stated, not arguments, or inferences, or matters of law, of which courts take judicial notice. A count might be bad on demurrer, though it set out all the evidence necessary to prove a cause of action. Pleadings are not for the purpose of setting out the evidence, but the facts established or to be established by the evidence.

For example the evidence in • this case may have shown that the superintendent was in the exercise of superintendence when he committed the alleged negligence, but that cannot cure a defect in the pleading by supplying a'material or necessary allegation which ay as omitted from the pleading. Proof Avithout allegation is as impotent, as is allegation without proof. As a rule a plaintiff is neither required or allowed to disprove matters not alleged or that are not in issue. It is for these reasons that the issues should be certain, and the pleadings should be the sole expositors of the issues, so that the evidence may be confined to them.

The first, second, and third counts are each defective in failing to allege that the negligence of Hardy, the superintendent, Avas committed whilst he was in the exercise of the superintendence intrusted to him; and the third, also, because it did not allege that it Avas the duty of Hardy to signal the enginer to stop the engine as complained of. The demurrers to these counts took these points, and it Avas therefore reversible error to overrule them. The necessary allegations could not be supplied by proof for the reasons set forth.

Count 5 was sufficient to state a cause of action under the fourth subdivision of the employer’s act, and the demurrers thereto Avere properly overruled.—Reiter-Connolly Co. v. Hamlin, 144 Ala. 193, 40 South. 280.

Subsection 4 differs materially from all other subdivisions under the employer’s act, in that it involves no inquiry as to the negligence of the person or servant whose act or omission caused the injury. It rests upon impropriety of the master’s rules, by-laws, or instructions given by his authority. It is only when the act or omission causing the injury is in accordance with the master’s rules, by-laws, or orders that there can he liability under this subdivision. If the servant or person acts contrary to the rules, by-laws, or orders of the master, and thus causes injury, there may be liability under some other subdivision, but not under the fourth. It therefore contemplates cases in Avhich no authority or discretion is vested in the person causing the injury. He may be an inferior or a fellow laborer of the person injured.

This subdivision requires that the act or omission relied upon must be done or made “in obedience to” the rules, by-laws, or instructions. If the act or omission is itself negligent, in that it did not conform to the rules, by-laws, or instructions, then, of course, there can be no liability under this subdivision. Under the other subdivisions, the master is made liable by virtue of the statute for the negligence or wrong of his servant; but under this one (subdivision 4) the master is liable because some servant acted in accordance with the rules, orders, or instructions of the master. That is, the master is liable in this case, though the servant may not be, because he acted in accordance with the rules or instructions of the master. It is the master’s or vice principal’s wrong in case of corporations as to rules, bylaws, or instructions as to which this subdivision imposes liability upon the master. The master is bound to answer for any impropriety in the rules or by-laws under which his business is carried on, whether there has been any negligence on his part or not, and he may be liable as for this, though he may have taken due care to employ competent persons to formulate his rules and by-laws. This subdivision presents one of tbe nondelegable duties of tbe master, to. tbe end that a safe system for tbe conduct of bis business is adopted and adhered to. 2 Labatt, Master & Servant, §540.

For tbe errors indicated, tbe judgment is reversed and tbe cause is remanded.

Reversed and remanded.

Simpson, Anderson, and McClellan, JJ., concur.