Kaplan v. Sertell , 217 Ala. 413 ( 1928 )

The action is for personal injuries and founded upon alleged breach of the common-law duty of the master to furnish reasonably safe tools for the use of his servant.

Injuries in such cases are presumed to come under the Workmen's Compensation Law (Acts 1919, p. 206). The complaint should aver facts that take the case without the Compensation Law, or, otherwise stated, bring it within one of the exceptions thereto. Steagall v. Sless-Sheffield Steel Iron Co., 205 Ala. 100, 87 So. 787.

Count 3 of the complaint, the count upon which the case was tried, is set out in the report of the case. It entirely omits such averments. Apt demurrer pointing out this defect was overruled. This was error. Appellee seeks to avoid a reversal by invoking the doctrine of error without injury, in that the undisputed proof showed less than 16 employees were regularly employed in the business.

We do not think the record supports this contention. Plaintiff testified six or seven men were working with him in the business, but further on his testimony indicates this included only the meat cutters using the same tools. Nowhere do we find stated the number of employees in this business. Having been eliminated as an issue by ruling on the demurrer, the question seems not to have been considered on the trial, nor was it submitted to the jury.

We therefore need not determine whether an omission of this sort in the complaint, one going to the existence of the cause of action presented therein, can be cured by evidence.

Other questions presented may not arise on another trial.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.