Sloss-Sheffield Steel & Iron Co. v. Moore

PELHAM, J. The appellee, as plaintiff in the trial court, sued the defendant for personal injuries alleged [320] to have been received by the plaintiff while in the employ of the defendant. The first assignment of error goes to the court’s action in overruling demurrers to the two counts of the complaint. The allegations of each count are to the same effect,,' in that they each aver “that on said day, while plaintiff was in the service or employment of defendant, and engaged in or about work for the defendant at or in said stove,” etc. The objection urged to the sufficiency of these counts — and the question was presented to the trial court by demurrer— is that it does not appear from the allegations of the complaint that the plaintiff was injured while engaged in the performance of his duties under his said employment. . Whenever a count is so framed that the evidence satisfying its averments will not disclose a condition from which the liability of the defendant necessarily results, or that the evidence supporting its averments may or may not disclose a condition from which a liability must result, it is subject to demurrer. The averment must be such that it can be satisfied only by evidence upon which the liability of the defendant can be predicated. It is established in the case of So. Ry. Co. v. Guyton, 122 Ala. 231, 25 South. 34, that if the servant is employed to do a certain service, and he is injured in the performance of a different service voluntarily undertaken, although for the same master, liability for tbe injury does not follow. Under the averments of the counts, the subject of consideration in this case, in relation to the employment and the work the plaintiff was doing when injured, these averments would have been fully satisfied by proof that the plaintiff was employed by the defendant to perform one service and that he was injured while voluntarily [321] doing an entirely different thing. Under such conditions the evidence would not have disclosed the liability of the defendant, under the principle declared in the case of So. Ry. Co. v. Guyton, supra, although the counts would have been proved as laid. The demurr-. ers therefore were well taken. The case of So. Ry. Co. v. Guyton on this proposition is not out of harmony with the general line of decisions in this state on the principle discussed. To the same effect is Ga. Pac. Ry. Co. v. Propst, 85 Ala. 203, 4 South. 711, and the Guyton Gase has been followed and approved several times, and the principle involved here referred to approvingly in the case of Grissom v. A. & B. Air Line Ry., 152 Ala. 110, 112, 44 South. 661, 13 L. R. A. (N. S.) 561, 126 Am. St. Rep. 20. Those cases which permitted recovery where the plaintiff was not actually engaged in labor in the strict line of employment, but was going for a drink of water, or to answer a call of nature, or to get his meals, do not conflict with the principle announced in the cases above referred to and followed by us. Such acts are the inevitable and necessary incidents of daily life, and therefore of necessity in the contemplation of the parties in every employment. There is -a broad distinction between an unskilled laborer, for instance, going for a drink of water, and the same laborer leaving some simple employment to voluntarily engage in one highly complicated, and requiring, perhaps, expert knowledge to avoid injury to himself. It might well be assumed that the master contemplated the risks incident to and taken by a teamster while getting a drink of water, while the same thing could not be said should the teamster voluntarily undertake to handle dangerous and complicated machinery. [322] The pleadings on another trial will be different, and we will not discuss other assignments of error. Reversed and remanded.