Richardson v. Vaughn , 208 Ala. 442 ( 1922 )

Count 1 of the complaint is framed under subdivision 3 of the Employers' Liability Act (Code, § 3910). It is fatally defective in not alleging that Lane was negligent in ordering plaintiff to grind the meat, if indeed Lane gave such an order. So. Car Foundry Co. v. Bartlett, 137 Ala. 234, 241, 34 So. 20; Creola Lbr. Co. v. Mills, 149 Ala. 474, 480, 42 So. 1019. The demurrer pointed out this omission, and should have been sustained.

Count 2 alleges that —

Plaintiff "was not familiar with the mechanism or working of said meat grinder, and that his injury was proximately caused by the negligence of A.D. Lane, who failed to instruct plaintiff as to the proper operation of said meat grinder, or as to the dangerous character of its mechanism. And * * * that the said A.D. Lane was in the service or employment of the defendants, and that plaintiff was bound to conform, and did conform, to his orders and directions at the time the injury occurred, and that such injury resulted from his having so conformed."

We think that this count is subject to the seventh ground of demurrer, as setting up two distinct causes of action; the one, Lane's negligent failure to instruct, and the other, plaintiff's conformity to Lane's order. If the count be treated as framed under subdivision 3 of the act, it is defective in not alleging that Lane gave a negligent order; and, if it be treated as charging a negligent failure to instruct, it is defective in not alleging that the operation of the meat grinder was in fact dangerous to one who was not instructed, since otherwise the duty to instruct does not arise. Each of these defects was aptly pointed out by the demurrer.

Count 3 declares upon defendants' negligent failure to instruct plaintiff in the proper operation of the meat grinder, and alleges that plaintiff was inexperienced and uninstructed as to its mechanism and working, and "was not informed as to its dangerous character." This last allegation is not the equivalent of an affirmative allegation that the machine, in its mechanism or operation, was of a dangerous character, and hence the count was, like count 2, and for the same reason, subject to the demurrer.

Count 4 charges no negligence whatever. It merely "alleges that the proximate cause of his [plaintiff's] injury was a defect in the condition of the ways, works, machinery, or plant connected with or used by his employers, the defendants herein." Such a count, it has been several times held, does not state a cause of action. M. O. R. Co. v. George, 94 Ala. 199,216, 10 So. 145; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143,146, 10 So. 87. It follows, of course, that it would not support a judgment though no objection were taken to it by demurrer.

Count 5 is subject to the same criticism made of count 4, and as to count 5 an apt ground of demurrer was presented.

It will be unnecessary to deal with assignments of error relating to the refusal of requested instructions. For the errors of the trial court in overruling the demurrers to the several counts of the complaint, the judgment will be reversed, and the cause remanded for further proceedings.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.