[Jackson Lumber Co. v. Courcey.] tion 3910, Code 1907, he may nevertheless enforce a liability for injuries created by such section. 4. Same; Superintendence; Authority to Give Instruction.-Where a servant was injured by the fall of a scantling due to the release of pressure on a jack supporting it, the release of pressure being by instructions from H., evidence that H. was boss of the carpenter crew at work on the building in question, and was so far in charge of the work in which plaintiff and the other employees were engaged when it was interrupted by the accident complained of, as to justify an inference that he was delegated with authority to give instructions as to the manner of doing the work, was sufficient to show that he had authority from defendant to give instructions. 5. Same; Particular Instructions.-Where the servant was injured by the fall of a scantling due to the release of pressure on a jack by which the scantling was supported, such release of pressume being pursuant to an alleged negligent instruction of H., in charge of the work, the fact that what H. said as to the manner of releasing the pressure and taking down the scantling might be regarded as an act of superintendence under subdivision 2., or as orders or directions within subdivision 3, would not prevent them from also constituting particular instruction within subdivision 4 of section 3910, Code 1907. 6. Same; Negligence; Evidence.-The evidence considered and held sufficient to show that the order given by H. was negligent under subdivision 2, sec. 3910, Code 1907. 7. Same; Method of Work; Evidence.-Where the action was for injuries to a servant due to the withdrawal of the support of a jack by which a scantling was sustained, the proper inquiry was whether the method ordered to be pursued was a reasonably safe one, and a question as to whether defendant had pursued a similar course before with reference to similar occasions, was improper. 8. Appeal and Error; Harmless Error; Pleading and Proof.-A defendant cannot complain of the fact that a plaintiff alleged and proved more than the law requires to entitle him to maintain the right of action which he asserts. APPEAL from Covington Circuit Court. Heard before Hon. H. A. PEARCE. Action by C. M. Courcey against the Jackson Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed. The following are the counts referred to in the opinion: (5) Plaintiff claims of defendant the further sum of $5,000 as damages for injuries to him at or near defendant's sawmill in Covington county, Ala., on, to wit, Feb [Jackson Lumber Co. v. Courcey.] ruary 1, 1912. Plaintiff avers that at and prior to the time of said injuries he was in the employ of defendant corporation, and was engaged in the performance of his duties as such employee of defendant corporation, and the injury was caused by reason of the negligence of one Ad Hall, a person in the service or employment of defendant, who had superintendence intrusted to him, and while in the exercise of such superintendence. Said negligence consisted in this: That a large scantling was standing on end on a jack near where plaintiff was in the discharge of his duties, the said scantling being used in holding up a slab trough at said mill, said slab trough being supported or partially supported by the said scantling and jack, and said Ad Hall, while in the exercise of such superintendence, negligently caused the pressure on said jack to be released, whereby the said scantling fell, striking plaintiff on the head. (Here follows catalogue of his injuries.) (6) Alleges the same state of facts as 5, and alleges the injury to have been caused by reason of the act of some person in the service or employment of the defendant corporation in releasing the pressure upon a jack while plaintiff, in the discharge of his duties, was standing near by, whereby a large scantling, which was held in a perpendicular position upon said jack by said pressure, was loosed and fell, striking plaintiff (causing injuries set out in count 5). Plaintiff avers that said act of releasing said pressure as aforesaid was done in obedience to particular instructions negligently given by one Ad Hall, a person delegated with the authority of defendant in that behalf. (7) Same as 5 as to relationship, and adds that under his employment it became plaintiff's duty to assist in putting up a new bent, or a part of a new bent, under a slab trough at defendant's mill; that plaintiff and three [Jackson Lumber Co. v. Courcey.] other hands were engaged in this work, acting under instructions of one Ad Hall, a person in the service or employment of defendant, who had superintendence over this work and over the plaintiff and the other hands intrusted to him by defendant; that after said bent, or part thereof, had been put in place by plaintiff and other said hands, and while the jacks and scantlings used in jacking up said trough were being removed by plaintiff and the other said hands, a large scantling standing on end on the jack used by one of said hands, to wit, one Grimes, fell upon or against plaintiff, crushing and bruising (here follows catalogue of his injuries). Plaintiff avers that the danger of said scantling falling upon or against plaintiff when the pressure was released, as was done, was well known to said Hall, or by the exercise of reasonable diligence should have been known to him; that it was the duty of said Hall, in the exercise of the superintendence, to use reasonable diligence to secure the removal of said jack and scantling in such a manner as to eliminate danger to plaintiff if possible; that plaintiff and other said hands were each operating a jack on top of which stood one of the large scantlings; that, when the pressure was released from the said scantling, it became almost impossible for one man to operate a jack, and at the same time prevent the scantling from falling; and that said Hall, in the exercise of such superintendence, negligently failed to exercise reasonable care in securing the removal of said jack and scantling, in that he negligently permitted or required said Grimes to operate or to manipulate alone one jack and the scantling standing thereon, whereby said scantling was loosened, and fell upon or against plaintiff as aforesaid. And plaintiff avers that said injury proximately resulted from the negligence of said Ad Hall in the exercise of such superintendence. [Jackson Lumber Co. v. Courcey.] W. O. MULKEY, for appellant. The court was in error in overruling demurrers to the 5th count, as the count states that the superintendent himself did the act.-Smith v. Pioneer M. & M. Co., 46 Ala. 234; Sudb. 2, sec. 3910, Code 1907. The 6th count is based on subd. 4 of said section, and is not sufficient to charge actionable negligence under said count.-Laughran v. Brewer113 Ala. 509; Pos. Tel. Co. v. Hulsey, 115 Ala. 193; 149 Ind. 157; 68 Fed. 630; Dresser, pp. 312-20. Counsel discusses assignments of error relative to other pleadings and to evidence, but without further citation of authority. JONES & POWELL, for appellee. The 5th count was sufficient and not subject to the demurrers interposed.Reiter-C. Mfg. Co. v. Hamlin, 144 Ala. 192. Counsel discuss other matters assigned, but without further citation of authority. WALKER, P. J.-The original complaint contained seven counts. Demurrers to the first, third, and fourth counts were sustained, and the general affirmative charge in favor of the defendant was given as to the second count. Counsel for the appellant insists in argument that the fifth count was subject to demurrer on the grounds suggesting its failure to show that the defendant's superintendent was guilty of the negligence charged against him "whilst in the exercise of superintendence." The contention is that the averments of the count as to the superintendent's negligence might be construed as showing no more than that he was negligent while he was acting, not as a superintendent, but as a mere participant in the work in which the plaintiff, his coemployee, was engaged. We are not of opinion that the [Jackson Lumber Co. v. Courcey.] count was subject to demurrer on the ground mentioned. In connection with averments showing that the injury complained of was sustained by the plaintiff by his being hit by a large scantling which had stood on end on a jack, near which the plaintiff was engaged in the discharge of his duty as an employee of the defendant, it averred that said injury was caused by reason of the negligence of one Ad Hall, a person in the service or employment of the defendant, who had superintendence intrusted to him, and while in the exercise of such superintendence; the averment as to the negligence of Hall being that he "negligently caused the pressure on said jack to be released, whereby the said scantling fell, striking plaintiff on the head," etc. There is nothing in the quoted averment to indicate that the fall of the scantling was the result of Hall himself releasing the jack, or that personally he took any part in the operation of the jack. It fairly imports that he caused another or others to do the thing which resulted in the injury to the plaintiff—that, while performing the functions of a superintendent, he gave an improper direction with respect to the details of the work which he was superintending. We think that the averments of the count sufficiently show that the superintendent was negligent "whilst in the exercise of superintendence,' within the meaning of the provision contained in subdivision 2 of the Employers' Liability Act (Code, § 3910), so as to render his employer, the defendant, liable to his coemployee, the plaintiff, for the consequences thereof.-Reiter-Connolly Mfg. Co. v. Hamlin, as Adm'r, 144 Ala. 192, 40 South. 280; Bessemer Land & Improvement Co. v. Campbell, et al., Adm'rs, 121 Ala. 50, 25 South. 793, 77 Am. St. Rep. 17; Highland Ave. & Belt R. R. Co. v. Dusenberry, 98 Ala. 239, 13 South. 308; 2 Labatt on Master and Servant, § 687. 99 |