Corona Coal Co. v. Wells

BRICKEN, J. Action by Wells (appellee), plaintiff in the court below, against appellant, for personal injuries. The complaint, after amendments, consisted of five counts. All of the counts, except count 4, were eliminated, either by sustaining demurrers thereto or by affirmative charge for the defendant. The case was tried upon count 4. This count was based upon subdivision 2, § 3910, of the Code 1907, and the negligence was charged as follows: “Plaintiff avers that he suffered his said injuries and damages by reason and as a proximate consequence of the negligence of one Floyd Jackson, whose name to plaintiff is otherwise unknown, and who was, on, to wit, said date, in the service of the defendant and to whom superintendence had been intrusted, and whilst in the exercise of said superintendence, which negligence consisted in this, the said Floyd Jackson negligently permitted the said *272 rock, slate, or other hard substance, to fall against plaintiff.” [1] To create a liability'under subdivision 2 of section 3910 of tire Code 1907, it is not sufficient to merely show that injury was caused by the negligence of a person in the service or employment of the master or employer who had superintendence intrusted to him, but it must appear that the negligence occurred while the offending employe was in the exercise of such superintendence. Linderman v. T. C. I. & R. R. Co., 177 Ala. 378, 58 South. 900; Louisville & Nashville R. R. Co. v. Andrews, 171 Ala. 200, 205, 54 South. 553; Smith v. Pioneer Mining & Mfg. Co., 146 Ala. 234, 41 South. 475; A. G. S. Ry. Co. v. Cardwell, 171 Ala. 274, 55 South. 185; Freeman v. S. S. S. & I. Co., 137 Ala. 481, 34 South. 612; Dantzler v. De Bardeleben Coal & Iron Co., 101 Ala. 309, 14 South. 10, 22 L. R. A. 361. See, also, Vandiver v. De Bardeleben Coal Co., 202 Ala. 627, 81 South. 569. [2] The evidence in this case shows that the plaintiff was injured by the falling of a rock; that the rock was caused to fall by the fact that it was dug up by Floyd Jackson, who was a person to whom superintendence had been intrusted. However, the evidence does not show that the act of digging the rock was done by said Floyd Jackson while in the exercise of the superintendence intrusted to him. To the contrary, the evidence is without dispute that at the time of the alleged injury Jackson, by digging into the earth, was merely performing an act of manual labor and was at the time acting under the superintendence of a superior, one Mr. Lang, known as the pit boss, or bank boss, who was present and to whom Jackson was to report whether it would be advisable to shoot or dig the bank. It is true that it has been held in the case of Linderman v. Tenn. C. I. & R. R. Co., supra, that, where the superintendent is acting in a dual capacity, his employer would be liable for his negligent act. However, the evidence in this case shows that Jackson was acting alone in digging up the rock, and it cannot be said that he was directing or superintending his own act at that time. In this connection, we quote from the opinion in Smith v. Pioneer Mining & Mfg. Co., supra, as follows: “Assuming that Blair was a superintendent within the meaning of the statute, and that he was guilty of negligence, yet we are not of the opinion that liability for such negligence has been shown for the reason that it does not appear it 'occurred while he was in the exercise of the superintendence with which he had been intrusted. On the contrary, he was performing a more act of manual labor having in it no quality or element of control or direction. The work that was being done by the plaintiff was very simple, and at the time of the injury no orders or directions were given to him. In no proper sense can it be said that Blair was directing or superintending his own act at that time.” It follows therefore that the affirmative charge which was requested in -writing by the defendant should have been given. For this error the judgment of the lower court is reversed, and the cause remanded. Reversed and remanded.