Harris v. A. J. Spencer Lumber Co. , 185 Ala. 648 ( 1914 )

SAYRE, J.

Appellant sued to recover damages for the wrongful death of his minor son, alleged to have been caused while deceased was in the employment of defendant. Appellant did not sue as administrator, and necessarily his action, brought in his capacity as parent of the deceased, was under section 2485 of the Code, for an administrator alone can sue under the Employer’s Liability Law, sections 8910-8912 of the Code, whereas a parent, as such, is limited, in the case of his child’s death, to an action under section 2485. Proceeding by virtue of section 2485, plaintiff could have no help from the Employer’s Law, and could recover only in case the son might have maintained an action at the common law had his injuries not resulted fatally. But while plaintiff, suing as parent, could proceed only by authority of section 2485, in framing his complaint he stated a case in which he was affected by what would have been the son’s disability at the common law. He averred in effect that his son, while acting within the line and scope of his employment, which required him to be upon a logging train operated by defendant, was brought to his death by the negligence or wanton wrong of the engineer employed by defendant to operate the train, the engineer also being engaged at the time in the performance of his duty under his employment. It was averred, further, that plaintiff’s deceased son was a minor, but the complaint is otherwise silent as to his age, nor is it alleged that his employment was without plaintiff’s consent. On these averments and these silences of the complaint it must be assumed, in the consideration of defendant’s demurrer, that deceased was lawfully employed by defendant with plaintiff’s consent, and that he was over the age of 14 years, and prima facie of sufficient judgment and discretion to comprehend and guard against the dangers incident to his employment, when fully explained to him, for, had the facts been otherwise, they would have been so laid in the complaint. “The authorities are uniform at common law to the proposition that by such a contract both the son and the father assumes all the risks incident to the service, and that neither can recover against the employer for any injury resulting to the employee from the negligence of a co-employee in and about the common service.” — Lovell v. De Bardelaben Coal & Iron Co., 90 Ala. 13, 7 South. 756. As appears in the complaint, it had been the duty of deceased under his employment to aid in placing logs upon the train in the forest where they were cut, and, when they had been transported to the river, to aid in throwing them into the river, and in performing these services it was necessary for him to ride back and forth on the train. There is no reason to doubt that deceased was brought by his employment into such close relation with the operation of the railroad or logging road that danger therefrom constituted an ordinary danger of the service in which he was engaged, and that he was in consequence a fellow servant with the engineer. — Boggs v. Ala. Consol. C. & I. Co., 167 Ala. 251, 52 South. 878, 140 Am. St. Rep. 28; M. & O. R. R. Co. v. Thomas, 42 Ala. 672; M. & M. R. R. Co. v. Smith, 59 Ala. 245. The foregoing principles have been maintained and demonstrated in our cases, and it results that the demurrer to the complaint was properly sustained. — Lovell v. De Bardelaben Co., supra; Harris v. McNamara, 97 Ala. 181, 12 South. 103; Woodward Iron Co. v. Cook, 124 Ala. 349, 27 South. 455; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 South. 568.

The judgment entry recites that, after the demurrer was sustained to the complaint, plaintiff declined to amend his complaint. Thereafter nothing was left to the court but to administer the coup de grace to plaintiff’s case. The court might have rendered a judgment for the defendant as upon the merits, and this would have been the proper course, but plaintiff (appellant) is in no position to complain that his case was merely dismissed.

Affirmed.

Anderson, C. J., and McClellan and Somerville, JJ., concur.