Cahaba Coal Co. v. Elliott

McCLELLAN, J.

— Action by servant (appellee) against the master (appellant) for damages for personal injuries received while engaged in the masters service. Of the 16 counts filed, only count 11 was submittecl to the jury. That count was designed to state a cause of action under subdivision 2 of the Liability Act (Code, § 3910). The report of the appeal will contain count 11.

Upon the authority of Woodward Iron Company v. Marbut, infra, 62 South. 804, in treating count 1 in that case, the majority of the court hold that count 11 was subject to the demurrer, which the trial court overruled. The reversal of the cause necessarily follows.

On what appears to me to be the apt authority afforded by Alabama Great Southern Railroad Company v. Davis, 119 Ala. 572, 21 South. 862, affirming the sufficiency of count 1, decided 15 years ago — Bear Creek Mill Co. v. Parker, 131 Ala. 293, 32 South. 700, affirming the sufficiency of count 3, decided in 1902, and particularly Creola Lumber Co. v. Mills, 149 Ala. 474, 42 South. 1019, affirming the sufficiency of count 1, decided in 1906 — the writer dissents from the conclusion prevailing in this and the Marbut Case (supra) in respect of the sufficiency of counts 11 and 1 in these cases. The only decision opposed to the three cases ábove cited is the Maddox Case, 171 Ala. 216, 224, 55 South. 93, decided in 1911; and there no account appears to have been taken of the decisions contrary to which it concludes. These decisions, viz., Davis, Parker, and Mills (supra), cannot, in my opinion, be rationally distinguished to the end that the inapplication of their clear doctrine can be conceived or effected. I am unwilling, without ample warning to the trial courts and to the profession, to overrule them after they have stood unquestioned, and doubtless have been frequently followed and relied upon by the trial courts and the profession for so many years.

The process of attempting the differentiation of previous decisions by recourse to the faóts only, and not by reference also to the principle which such decisions illustrate, will lead inevitably to confusion, uncertainty, and conflict. The facts of a case may avert the application of a principle; but facts that invoke the application of a principle may be as variant as human action, and yet the principle applicable must, if reason reigns and logic leads, cast the legal conclusion. If the Davis, Parker, and Mills Cases are wrong, they should be overruled, and not left to establish or create a line of authority opposed to the presently prevailing view.

According to the view of the majority, the judgment is reversed, and the cause is remanded.

Anderson, Mayfield, Sayre, Someraulle, and de Graffenried, JJ., concur. McClellan, J., dissents. Doavdell, C. J., not sitting.