Warrior-Pratt C. Co. v. Shereda

Damage for Injury to Servant. 1. Master and Servant; Injury to Servant; Complaint. — The complaint examined and each count held to sufficiently state a cause of action under subdivision 1, section 3910, Code 1907. 2. Same; Independent. Contractor. — One who is engaged to mine coal in another’s mine, at a place fixed by the owner’s superintendent, at a stated rate per ton, and who is not in any manner under the control of the mine owner or its representatives with respect to the details of the mining is not a servant, but is an independent contractor ; hence, where the complaint alleged that plaintiff was in the employment of the mine owner, and the evidence showed that he was engaged to mine coal at a certain rate per ton; and did not show that the mine owner had any control or direction over him, such mine owner was entitled to have a verdict directed for him at the suit of plaintiff under the Employer’s Liability Act. 3. Same; Presumption and Burden of Proof. — Where the action was for injury sustained while engaged in mining coal in another’s mine, there was no presumption that plaintiff was a servant rather than an independent contractor, and the burden was on plaintiff to show the existence of the relation of master and servant. 4. Same; Instructions. — Where plaintiff alleged that he was in the mine owner’s employment but the evidence showed that he was an independent contractor, an instruction authorizing a recovery under the conditions which would render the master liable to a servant should not have been given, as under the complaint plaintiff could not recover unless he was shown to be a servant. 5. Same; Evidence- — In an action for injuries sustained while engaged in mining coal for a certain sum per ton, and the superintendent of the mine owner had testified that he had made the usual contract with plaintiff to drive a room in the mine, such superintendent should have been permitted to testify as to the nature and character of the contract. 6. Same. — Where the testimony was conflicting whether the rock which struck plaintiff fell from the roof of the entry where the evidence tended to show that it was defendant’s duty to inspect and remove dangerous rock or coal, or fell from the roof of the room in which plaintiff was working where the evidence tended to show that it was his duty to inspect or remove dangerous rock or coal, the court should have admitted all evidence calculated to show the respective duties of the mine owners and the miner, with respect to inspection or removal of coal and rocks. 7. Same; Expert Evidence. — Whether an entry was driven in a mine with due care and skill, was a proper subject-for'expert testimony. 8. Same; Sufficiency of Evidence. — An allusion in the testimony of a witness to the presence of a person representing an insurance company, and his testimony that he sent into the mine and brought out the men who knew about the accident was not sufficient to show that the mine owner had insured itself against liability for injuries to plaintiff, or to make a question for the jury as to the existence of the relation of master and servant between the mine owner and plaintiff, where it was not shown by whom the insurance referred to was effected. 9. Appeal and Error; Insistence Upon; Necessity. — Where a reversal is to be had on other ground the appellate court may point out errors which should be avoided on new trial, although not insisted upon in brief; and this is true although a judgment will not be reversed solely because of errors assigned and not insisted upon . (Sayre, ,T., dissents in part.)

Appeal from Jefferson Circuit Court. Action by Peter Shereda against the Warrior-Pratt Coal Company, for damages for injury while in its employment. Judgment for plaintiff, and defendant appeals. Count 2 alleges the operation by defendant of a coal mine, and that plaintiff was in the employment of defendant in said mine, and while engaged in the discharge of his duties under his employment a piece of rock or slate or other hard substance fell from the roof of defendant’s mine, striking plaintiff and inflicting the injuries which are set out. It is then averred that the injuries were caused by reason of a defect in the condition of the ways, works, machinery, or plant of the defendant, and that said defect consisted in this, that defendant failed to pull down what is known as a middleman from,said roof, and because thereof said middleman fell upon plaintiff, inflicting the injuries complained of, and plaintiff avers that said defect arose from or had not been discovered of remedied owing to the negligence of the defendant, or of some person intrusted by it with the duty of seeing that its way, works, machinery, or plant were in proper condition. Count 4 alleges the condition of the material composing the roof of defendant’s mine opposite room No. 10, near first right cross-heading, at the place where plaintiff was injured, was not sufficiently sustained and held in place, and because thereof a portion of such material composing such roof fell upon plaintiff and injured him. The exception to oral charge quoted in assignment 24 is as follows: “If you find from all the evidence that the rock fell by reason of a defect in the roof of the entry, and the superintendent, Lilich, who was also the mine boss, at the time as testified to, and several days prior thereto, knew of the defect or dangerous condition of the rock, and the defendant failed to remedy the defect, or put the rock in a safe condition, and if you further believe from the evidence that plaintiff was not such employee or servant whose duty it was to remedy such defect under the evidence before you, then you should find for the plaintiff, notwithstanding the rock broke off several inches within the neck of the room wherein it was the duty of the plaintiff to see to the safety of the roof.” The testimony of plaintiff was that he was working in the room, digging coal for himself, being paid by the ton, and making over $3. and up to $4 per day. ■ The superintendent testified that he gave the plaintiff the contract to drive room 10 on the first right cross. “I made the usual contract with him and marked it off. Plaintiff was paid 42y2 cents per ton for the coal.” It was attempted to be shown by this witness what was the nature and character of the contract, but on objection the evidence was excluded. Both of the counts on which the case went to the jury were under the Employer’s Liability Act, and of course tlie burden was on plaintiff to bring bimself Avithin the class of persons for Avhose benefit the statute Avas enacted. — Ga. Pac. v Propst, 4 South. 711; Harris v. McNamara, 12 South. 103; Dallas M. Go. v. Townes, 49 South. 989. Under the evidence plaintiff’s status was that of an independent contractor. — Harris v. McNamara, supra; Dallas M. Go. v. Townes, supra; Lookout M. I. Go. v. Lea, 39 South 1017. It follows that the court’s oral charge was improper. — U. 8. G. I. P. é F. Go. v. Driver, 50 South. 119; Ala. 8. & W. Go. v. Thompson, 52 South. 75; Frierson v. Fraser, 142 Ala. 232; sec. 5362, Code 1907. Counsel discuss exceptions to evidence, with the insistence that the court erred in not admitting it. — Ga. Pac. v. Propst, supra; L. & N. v. Allen, 78 Ala. 494; A. G. 8. v. Arnold, 84 Ala. 159; Holland v. Term. Go., 8 South. 524; R. & D. R. R. Co. v. Bivins, 15 South. 515. The Employer’s Liability' Act applies in this case, for the relationship is created when one commences to perform labor or service for another whether by contract or otherAvise, and the fact that payment is to be made by the piece does not preclude a person from being an employee within the purview of the statute. — Woodward I. Go. v. Curl, 153 Ala. 215; Bir. R. Mills v. Wampold, 143 Ala. 115; Gahaba 8. M. Go. v. Pratt, 146 Ala. 245; Tut■wiler O. & M. Go. v. Farington, 144 Ala. 157; Bir. M. &. O. Go. v. Skelton, 149 Ala. 465; Mascot O. Go. v. Garrett, 156 Ala. 290; White’s Personal Injury, sec. 69; Roberts & Wallace Employer’s Liability, 261. The affirmative charge is never properly given where the evidence affords reasonable inferences of material fact unfavorable to the party requesting it . — Peters v. So. Ry., 135 AÍa. 537; Bessemer Go. v. Tillman, 139 Ala. 462. No exception was reserved to the oral charge after the court’s explanation, and hence, the exception must fail. In any event, the charge was not error. — Sloss-Shefield v. Stewart, 55 South. 785. If the charge was misleading the duty was on defendant to request explanatory charges.- — B. R. L. & P. Oo. v. Simpson, 59 South. 213. The complaint sufficiently stated the relation of master and servant, the duty growing out of the relation, and the negligence proximately resulting in the injury, and this was sufficient. — Authorities supra; 162 Ala. 570; 144 Ala. 221; 122 Ala. 231; 134 Ala. 293; 136 Alá. 335; 138 Ala. 487; 141 Ala. 206; 128 Ala. 305. The fourth count óf the complaint was not subject to demurrer.— Authorities supra. A party cannot complain of the action of the court in sustaining objections to a. question where the court is not informed as to the answer expected unless it is disclosed by the question that it would call for affirmative admissible evidence. — Farley v. Bay Shell Road, 27 South. 774; Ross v. State, 139 Ala. 144; B. R. L. & P. v. Selhorst, 165 Ala. 481. Some of the questions clearly called for the mental operations of the witness, and were properly refused.* — Bunn Bros. v. Gunn, 149 Ala. 597; Merchants’ Bank v. Acme L. Go., 160 Ala. 435; Simmons v. State, 158 Ala. 8. The court properly sustained demurrers to plea 10. — Osborn v. Ala. S. & W. Go., 135 Ala. 571; Tenn. Go. v. Burgess, 158 Ala. 519; B. R. L. & P. Go. v. Bush, 56 South. 732.