Jones v. Kirkpatrick Sand & Cement Co.

SAYRE, J. Defendant operated a sand pit near the line of the Louisville & Nashville Railroad. Eor the convenient shipment of its products defendant maintained spur tracks into its property. At the time in question defendant had employed the railroad company to do some repairs on. one of its tracks, and in pursuance of that employment the railroad company had sent plaintiff with some men under 'his charge to do the work. Defendant lent the assistance of .some men who worked under the direction of one Zeigler. However, plaintiff had general control of the work; Zeigler pointing out the new location of the track which was to be moved in part. At the moment of his injury plaintiff was engaged in the business of cutting a steel rail. This was to be done by spiking down one end of the rail, putting it into tension by pressing the other end to one side, and then striking a cold-chisel held upon it a heavy blow with a 10-pound hammer. Plaintiff was holding the chisel and one “George” an employee of the defendant, was about to strike, when, according to plaintiff’s version of the facts, Zeigler appeared upon the spot, saying, “Let me hit the d-d thing and see it jump,” or some such words, took the hammer from George, attempted to strike the chisel, but instead struck plaintiff’s leg, inflicting severe injury. Defendant’s contention was that plaintiff called for a left-handed man to use the hammer, whereupon Zeigler attempted to use it. Plaintiff stated his case in nine counts, of which 1, 2, 3, and 7 were stricken on demurrer. The cause being tried on the remaining counts, the court directed a verdict for defendant. We consider the case first on its facts and without regard to the rulings on demurrer. Defendant contends that in'no event could plaintiff be allowed to recover for the broad general reason that the evidence offered by plaintiff as well as that for defendant was clear and undisputed to the effect that Zeigler was employed by defendant as a boss or superintendent, not as a common laborer, was in charge of the sand pit generally and of such of defendant’s employees as were helping to repair the track, and so that at the moment of his injury he was acting, not as superintendent, but as common laborer, and so without the. scope and course of his employment. This perhaps was the view entertained in the trial court; but it will be found that as to several of the counts the action of the court in giving the general charge must be sustained on different grounds. Plaintiff and Zeigler were for the moment engaged in a common enterprise— so to speak of the matter of cutting the rail —but they were not fellow servants. Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 South. 988. It is clear beyond dispute that plaintiff was not entitled to recover on those counts which allege that he was in the employment of defendant and seek recovery under the Employers’ Liability Act. Linderman v. T. C. I. Co., 177 Ala. 378, 58 South. 900. Plaintiff was employed by the Louisville & Nashville Railroad Company. Other counts proceed upon the theory that plaintiff, being an invitee, in the legal sense (A. G. S. R. Co. v. Godfrey, 156 Ala. 219, 47 South. 185, 130 Am. St. Rep. 76), upon the premises of defendant was injured -by the negligence of Zeiglqr acting at the time with *368 ing the scope and course of his employment by defendant. Such of the counts as allege that Zeigler was acting within the scope of his employment as superintendent could not be maintained, for this allegation of these counts was clearly rebutted by the evidence in the cause, which went to show without contradiction that Zeigler was at the moment performing the work of a common laborer. Plaintiff could not prevail on these counts by reason of the variance between pleading and proof. The fifth count charges plaintiff’s injury directly to the defendant corporation. Under the undisputed evidence plaintiff was not entitled to recover under that count for the reason pointed out in City Delivery Co. v. Henry, 180 Ala. 166-167, 34 South. 389. Under the influence of that decision falls also the sixth count, which charges, in effect, that the act of which plaintiff complains was done with the corporate consent of the defendant. There was no evidence to sustain this allegation. However, defendant owed plaintiff, as invitee, the duty, arising out of the relation, to exercise reasonable care for his safety, and was, virtually an insurer against the violation of such duty by its employees in whatever capacity employed, provided, of course, the employee did not so far depart from the course of his employment as to make his act his own independent tort. 1 Jaggard on Torts, p. 273. On this theory proceed cases like Case v. Hulsebush, 122 Ala. 212, 26 South. 155, and Gassenheimer v. Western Rwy. of Ala., 175 Ala. 319, 57 South. 718, 40 L. R. A. (N. S.) 998. What is an independent tort, considered in this connection, cannot be defined according to any definite rule. In cases arising under the superintendence clause of the Employers’ Liability Act the line is strictly drawn between acts of superintendence and acts not of superintendence because the statute—subdivision 2 of section 3910 of the Code—holds the employer liable only in case the act complained of is an act of superintendence. Linderman v. T. C. I. Co., supra. But in other cases the law recognizes that an employee may have more than one duty; that he may act in the capacity of superintendent, as an ordinary laborer,' or what not; and that to third persons the employer may be liable for the act of his employee done in any capacity covered by his employment. Here there was privity between the parties; plaintiff was on the premises of defendant by its invitation to do certain work in which defendant was interested. There was evidence tending to show that what Zeigler did was within the course of his employment; that is, was done in the performance of work to which he was appointed to contribute directly (though it may have been without the line of his assigned duties), and which brought the two into necessary contact and relation. If so, defendant was answerable for Zeigler’s negligence unless plaintiff was guilty of contributory negligence. Both questions, we think, were raised by the evidence and counts 8 and 9, which were sustained against demurrer and have not been eliminated by the considerations hereinbefore stated against other counts, and (as to count S) by the plea of contributory negligence, and were questions proper for jury decision. The court erred in giving the general charge for defendant upon the whole case. Now as to the demurrers: Appellee suggests no reasons why the demurrers to counts 1, • 2, 3, and 7 should have been sustained, but is content to say that, if the rulings against these counts were erroneous, no harm was done for the reason that plaintiff had the benefit of substantially the same allegations in other counts of the complaint. Our judgment is that these counts differed from the other counts to which they are likened in respect of matters which are made material by allegation and that the contention for error without injury cannot be sustained in the precise form in which it is made. However, the evidence in the cause—that offered by plaintiff as well as that offered by defendant—showed without conflict that counts containing the material averments of the counts in question can never be maintained, for reasons which have been pointed out. The considerations to which we have adverted will continue to operate against any case stated in the language of these counts; for it cannot be assumed that the evidence for plaintiff on another trial will be in flat contradiction of his evidence as it now appears in the record. Eor these reasons consideration of the errors assigned on the rulings against the. sufficiency of these counts is pretermitted. And, of course, we do not pass on the sufficiency of other counts, for that question is not raised. Reversed and remanded. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.