
    Sloss-Sheffield Steel & Iron Company v. Whittaker.
    
      Injury to Servant.
    
    (Decided January 23, 1913.
    61 South. 18.)
    
      Master and Serva/nt; Injury to Servmt; Scope of Authority.— Where the complaint averred that it was defendant’s duty to provide plaintiff with reasonable safe tools, implements and appliances with which to work, but that defendant negligently disregarded its said duty and failed to provide plaintiff therewith, and as a proximate consequence, etc., it sufficiently averred that plaintiff was acting within the line and scope of his authority at the time he was injured, and was not objectionable as authorizing recovery1 although the failure to provide was not due to negligence, but to some cause beyond defendant’s control.
    Appeal from Birmingham City Court.
    Heard before Hon. William M. Walker.
    Action by Robert AYhittaker against the Sloss-Shef-field Steel & Iron Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Count 16 alleges, in effect, that defendant was operating coke ovens near Blossburg, Jefferson county, Ala., and in the operation thereof used large quantities of coal which were conveyed to said ovens in cars which were unloaded by means of drop bottom, doors, and plaintiff says that at said time and place he was engaged in the employment of defendant and in and about his duties unloading a car load of coal for defendant, and while so engaged he Avas injured as folloivs: [Here follows catalogue of his injuries and damages.] And plaintiff .alleges that “it was the duty of the .defendant to- provide,.plaintiff with reasonably safe tools, implements, and appliances with which to work, but defendant negligently disregarded his said duties, and failed to provide plaintiff with reasonably safe tools, implements, and appliances with Avhich to work, and as a proximate consequence thereof plaintiff was injured as aforesaid.” •
    Tillman, Bradley & M'orrow, and L. C. Leadbetter, for appellant.
    Count 16 was subject to the demurrers interposed and the court erred in overruling demurrers thereto. — 0. Foundry Go. v. Bailey, 162 Ala. 623. Complaint failed to allege also- that plaintiff was injured while performing the duties within the line of his employment. .'
    Perdue & Cox, and ■ Willard Drake, for appellee.
    The complaint ivas not open to any of the grounds of demurrer interposed thereto. — Huyelo v. MoNerny, 50 South. 929; Lebat, secs. 22-a, 23-4.
   PELHAM, J.

This is an appeal on the record without a bill of exceptions, and the appellant assigns as error the ruling of the court on the defendant’s demurrers to the sixteenth count of the complaint. The gravamen of this count is the alleged breach of the common-law duty of the master to furnish suitable appliances with which the servant might perform the duties required of him in and about the master’s buisness. It is insisted in the first instance that the allegations of this count of the complaint (16) fail to aver that the plaintiff was acting within the line and scope of his “authority” at the time he was injured. We think it is sufficiently ‘ averred that the plaintiff at the time he received bis injuries was. acting in tbe line and scope of bis employment by tbe defendant, wherein it is alleged “at said time and place be [plaintiff] was in tbe employment of defendant, and engaged in and about bis duties in unloading a car of coal for defendant, and that while be was so engaged be was injured,” etc. “Duties” clearly has reference to tbe duties of bis (plaintiff’s) employment. Tbe further contention is that tbe allegation of this count of tbe complaint as to tbe duty of tbe defendant to provide tbe plaintiff with reasonably safe tools is so drawn that tbe plaintiff would have been entitled to recover bad tbe defendant failed to provide such- tools, although tbe failure was not due to negligence,' but to some cause beyond tbe control of tbe defendant. Tbe allegation of tbe complaint at. which tbe demurrers on this point are aimed is as follows: “Plaintiff alleges that it was tbe duty of the defendant to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, but tbe defendant negligently disregarded its said duty and failed to provide plaintiff with reasonably safe tools, implements, and appliances with which to work, and as a proximate consequence thereof plaintiff was injured as aforesaid.” Tbe fair and reasonable construction of this allegation is that tbe defendant negligently failed to provide the plaintiff with reasonably safe tools, and tbe demurrer, not being well taken, was properly overruled.

Tbe court’s action in overruling tbe defendant’s demurrers to tbe sixteenth count of tbe plaintiff’s complaint was without error, and tbe case will be affirmed.

Affirmed.  