Allen v. Alger-Sullivan Lumber Co.

GARDNER, J. [1] Count 2 as amended rested for recovery upon the employment by the defendant of the plaintiff’s minor son to engage in dangerous work, without plaintiff’s knowledge or consent, and his injury and death as a consequence thereof. This count did not rely upon the doctrine of negligence, and the plea of contributory negligence was improperly allowed as a defense thereto. Marbury Lbr. Co. v. Westbrook, 121 Ala. 179, 25 South. 914; Huntsville Knitting Mills v. Butner, 194 Ala. 317, 69 South. 960. But it is insisted that, if demurrer to this plea was improperly sustained, i t was without injury for the reason that the affirmative charge was due the defendant on account of the failure of proof On the part of the plaintiff that the boy was employed or engaged in a dangerous work. The boy was between 14 and 15 years of age, and was engaged to cut wood back of the skidder, which work, as well as his surroundings, so far as this record shows, were entirely safe. Nor does it appear that he .was injured on account of any part of de-' fendant’s work being attractive, nor that he was enticed to the place of his injury, but merely left his place of employment and went to where they were cutting down trees, which was several hundred feet away, in an effort to engage some of the hands in a game. [2] We are therefore persuaded that, under these circumstances, the defendant was due the affirmative' charge upon count 2 as amended. Tenn. C. I. & R. R. Co. v. Crotwell, 156 Ala. 304, 47 South. 64. There is nothing in Jefferson Fert. Co. v. Burns, 10 Ala. App. 301, 64 South. 667, upon which appellant relies, at all at variance with this conclusion. [3] However, we are of the opinion that the cause must be reversed for the ruling of the court in sustaining the demurrer to counts one and three as . amended. These counts presented an entirely different issue from that set up in the second count, as they rested for recovery upon the negligence of the defendant company, and the suit by the father was authorized under section 2485 of the Code of 1907. These counts make no attempt to state any cause of action under the Employers’ Liability Act (Code 1907, §§ 3910-3913; Woodward Iron Co. v. Cook, 124 Ala. 349, 27 South. 455), but are rested upon said section 2485, under which the recoverable damages are punitive and not compensatory as held in L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 South. 392. This is said in answer to some of the assignments of demurrer. Counts 1 and 3 as amended were not subject to any demurrer interposed thereto, and the court committed error in sustaining the same. This error must result in a reversal, for, as previously stated, these counts were drawn as provided by said section 2485, and presented the issue of negligence which was not involved in 'count 2, upon which the cause was tried. The plaintiff was therefore deprived of having this issue presented for determination, and we are unable to see where the' rule of error without injury can be here applied. The ruling of the court upon the demurrer to these counts was assigned as error, and in brief of counsel it is insisted that these counts were sufficient under said section 2485 of the Code. In our opinion these assignments are sufficiently argued in brief, and further discussion here is therefore unnecessary. The judgment is reversed, and the cause remanded. Reversed and remanded. ANDERSON, C. J., and SAYRE and BROWN, JJ., concur. Footnotes [1] <@=oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes