Opinion
6 Div. 44.
February 7, 1924.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
W. A. Denson, of Birmingham, for appellant.
An unlawful act is per se negligent. Count 4 alleges the wrongful act proximately causing intestate's death, and is sufficient. Acts 1919, p. 868; South. N. A. R. Co. v. Donovan, 84 Ala. 147, 4 So. 142; Elyton Land Co. v. Mingea, 89 Ala. 530, 7 So. 666; Montgomery St. R Co. v. Smith, 146 Ala. 326, 39 So. 757.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellee.
The Workmen's Compensation Act is applicable to this case, and is exclusive. Acts 1919, p. 206, § 5 (a); Id. p. 209, § 10 1/2. The demurrer was hence properly sustained. Steagall v Sloss Co., 205 Ala. 100, 87 So. 787, Ga. Casualty Co. v. Haygood, 210 Ala. 56, 97 So. 87. The cause is not brought under the homicide statute. Code 1907, § 2486; Massey v. Pentecost, 206 Ala. 411, 90 So. 866.
Section 6 of the Child Labor Law (Gen. Acts 1919, pp. 867, 869) provides:
"No child under the age of sixteen years shall be employed, permitted, or suffered to work in any capacity: * * * (10) In any tunnel or excavation."
Section 17 of the act makes any violation of the provisions of section 6 a misdemeanor.
The complaint clearly alleges a violation of the quoted provisions of the law — unquestionably a "wrongful act" within the meaning of that phrase as used in the Homicide Statute (Code, § 2486) giving a right of action to a personal representative "for the wrongful act, omission or negligence of any person," whereby "the death of his testator or intestate was caused." It is of course not necessary that a complaint showing death caused by a wrongful act of the defendant should allege that the action is brought under the Homicide Statute; nor is it necessary to allege that the act complained of was wrongful or unlawful when the act itself is specified, and is per se wrongful. Massey v. Pentecost, 206 Ala. 411, 90 So. 866.
There is no inconsistency in the allegation that defendant "permitted or suffered" plaintiff's intestate to work in an underground tunnel or excavation in its coal mine, and the further allegation that the intestate "was not an employe of the defendant." Obviously the intestate may have been the servant of an independent contractor, or he may have been the merely voluntary or casual assistant of some employe of defendant who had no authority to engage such an assistant. In neither case would the relation of employer and employe exist. Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33; Grissom v. A. B. Air Line Ry., 152 Ala. 110, 44 So. 661, 13 L.R.A. (N.S.) 561, 126 Am. St. Rep. 20. Such a relation is of course the essential basis of the Workmen's Compensation Act, and the remedy thereby provided. 28 R. C. L. 760, § 55.
As to the necessity of showing a duty to the intestate, and a breach of that duty, the law itself imposes the duty and defines its breach, and the allegations of the complaint bring the case within the terms of the law.
The allegation that the intestate "was not an employe of the defendant" is not defective in form as being a conclusion of the pleader. Though in a sense it may involve. a conclusion, it is nevertheless the negation of a fact which could not be denied in any other way. Such an allegation, not contradicted by other facts alleged in the complaint, is sufficient to remove the cause of action from the influence of the Workmen's Compensation Act, and bring it within the terms of the Homicide Statute.
Our conclusion is that the complaint states a cause of action under the Homicide Statute (Code, § 2486), and is not subject to any of the grounds of demurrer assigned.
It results that the judgment of the circuit court sustaining the demurrer was erroneous, and the judgment appealed from will be reversed, and the cause will be remanded for further proceedings.
Reversed and remanded.
ANDERSON, C. J., and THOMAS, and BOULDIN, JJ., concur.