[Griel v. Marks.]

sampled, and then store it in the defendants' warehouse, and bring the receipts to him; and that said cotton was accordingly stored at the defendants' warehouse, the receipts taken in the name of said Guy, and carried to him, and remained in his possession until his death; then, said cotton was not the property of the plaintiffs, and they must find for the defend

ants.'

These charges, to which the plaintiffs excepted, are now assigned as error.

R. M. WILLIAMSON, with JUDGE & HOLTZCLAW, for appellants.

STONE & CLOPTON, FITZPATRICK & RUGELY, contra.

BRICKELL, J. All the exceptions reserved are to charges given by the court on the request of the appellees, who were defendants in the court below. We do not understand the appellants as questioning the correctness of the legal proposition asserted in the first of these charges; that, to sustain the action of trover, the plaintiff must prove property in himself, and a right to the possession at the time of conversion by the defendant. The error of the charge is supposed to lie in the fact, that it is based on a partial view of the evidence, and diverted the attention of the jury from the consideration of other evidence, tending to establish that appellants had possession of the cotton, and a lien, entitling them to retain until the lien was discharged. An instruction to the jury, requested, cannot be refused on this ground. If there was evidence tending to establish such facts, the appellants should have requested a charge based thereon. When the evidence is conflicting, each party has the right to request instructions based on the hypothesis his evidence tends to establish.

There was evidence tending to prove the facts recited in the second and third charges. From that evidence, if believed by the jury, the legal conclusions asserted necessarily followed. The objections uged to these charges are near akin, if not identical with that taken to the first charge, which we have considered. The court did not err in giving these charges. The appellants could have cured any prejudice they might operate to them, if the jury credited the hypothesis their evidence tended to establish, by requesting charges adapted to that evidence.

There is no error in the record, and the judgment is affirmed.

VOL. LI.

[Holt v. Whatley.]

Holt v. Whatley.

Action for Damages for Personal Injuries.

1. Liability of principal and agent, for negligence of servants or sub-agents. — A contractor is not the agent of his employer, except as to the specific results which he undertakes to accomplish; and he is himself responsible to third persons for his negligence, or for the negligence of servants or other persons employed by him in the execution of the work.

2. Sufficiency of complaint. In an action on the case, to recover damages for personal injuries sustained by plaintiff while in defendant's employment, it is not necessary that the complaint should negative fault on the part of the plaintiff, or deny contributory negligence.

APPEAL from the Circuit Court of Montgomery.

Tried before the Hon. JAMES Q. SMITH.

This action was brought by Gabe Whatley, a freedman, against James L. Holt, to recover damages for personal injuries sustained by the plaintiff by the fall of the new markethouse in the city of Montgomery, in October, 1872, while he was employed as a workman by the defendant, who had undertaken to do all the wood-work for the contractor, Geo. M. Figh. The overruling of demurrers to each count of the complaint is the matter now assigned as error.

HERBERT & MURPHEY, for appellant.

GRAHAM & ARRINGTON, contra.

B. F. SAFFOLD, J.-The complaint for damages for personal injuries represents, in three counts, the responsibility of the appellant (defendant) as sub-contractor for the construction of the roof of a market-house; the employment of the appellee (plaintiff) to work thereon; the falling of the roof while he was so engaged, inflicting serious injury upon him; and the gross negligence of the defendant in failing to have the roof constructed in a substantial and workmanlike manner, which would have been known to him by the exercise of proper care and diligence, but which was unknown to the plaintiff.

A demurrer to the complaint was overruled. Its grounds were: 1st, No cause of action shown against the defendant; 2d, Failure to aver the exercise of due diligence on the part of the plaintiff, in ascertaining the danger he was subjecting himself to; 3d, Failure to deny contributory negligence.

1. A contractor, whether subordinate or principal, is not the agent or servant of his employer, in relation to anything but the specific results which he undertakes to produce. His employer, therefore, is not responsible to third persons for his negligence, or for that of his servants, agents, or sub-con

[Lowry's Administrator v. Newsom.]

tractors, in the execution of the work. O'Roorke v. Hart, 7 Bosw. 511, 514; Allen v. Willard, 57 Penn. St. 374; Shearman & Redfield on Negligence, § 79. "The party employee had the selection of the agent employed; and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders, should be responsible for any injury resulting from his want of skill or want of care." Baron Rolfe, in Reedie v. London & Northwestern R. R. Co. 4 Exch. 244. The averment of the complaint precludes the liability of any principal of the sub-contracting defendant.

2. The weight of authority is decidedly adverse to the necessity of averring in the complaint a denial of contributory negligence, or want of fault on the part of the plaintiff. When the injury to the plaintiff, the responsibility of the defendant for it, and his negligence are shown, a judgment for damages must follow without some defence. But the fault of the plaintiff, whether in complete defence to the action, or in mitigation of damages, appearing from the evidence, is available for the defendant, and it is immaterial how it is made to appear. Shearman & Redfield on Negligence, §§ 43-45, and cases cited; Ala. & Flor. R. R. Co. v. Waller, June term, 1872. The demurrer was properly overruled.

The judgment is affirmed.

Lowry's Administrator v. Newsom & Wife.

Scire Facias to revive Probate Decree.

1. Specification of grounds of demurrer.. On demurrer to a scire facias, the court can only consider the defects specifically assigned as causes of demurrer; and in the appellate court, on error, the inquiry is limited to the same defects.

2. Amendment of scire facias. —A scire facias, or citation, to revive a probate decree on which no execution was issued within one year after its rendition, whether regarded as process or as pleading, is within the statute authorizing amendments. 3. Defective process; how taken advantage of. — A defect in process, whether in the mode of suing it out, or in its return day, is matter for a plea in abatement, and not available on demurrer.

4. Form of decree against administrator on settlement. · On final settlement of an administrator's accounts in the probate court, if it appears that the assets in his hands consist partly of gold, and partly of currency, it is proper to render a decree against him, in favor of each distributee, for his share of each kind of money, distinguishing between them.

APPEAL from the Probate Court of Perry.

In the matter of the estate of William Lowry, on the petition of James T. Newsom and wife, distributees, for a scire facias to revive a decree rendered against the administrator, Isaiah Lowry, on final settlement of his accounts in said probate The scire facias, or citation, was issued on the 13th

court.

[Lowry's Administrator v. Newsom.]

March, 1873, and was in these words, omitting the caption : "You are hereby commanded to summon Isaiah Lowry, to appear in and before the probate court to be held for Perry county, at the court-house in the town of Marion, on the 28th day of April, 1873, then and there to show cause why a decree, rendered on the 23d day of February, 1872, in and by, and now pending in said court, against him as the administrator of the estate of William Lowry, deceased, and in favor of James. T. Newsom and his wife, Parmelia Newsom, for the sum of $52.66 in gold, and the further sum of $1,340.20 in currency, should not be revived against him; and this you shall in no wise omit, under the penalties prescribed by law," &c. The defendant appeared, and demurred to the scire facias, assigning the following causes of demurrer: "1. Because the plaintiffs do not, by the terms of said scire facias, call on the defendants to show cause why they should not have execution on their decree. 2. Because said scire facias is not made returnable to a regular term of said probate court. 3. Because it does not sufficiently set forth the decree sought to be revived. 4. Because it is not made returnable within such time as the law requires." The court overruled the demurrer, and then allowed the plaintiffs to amend the scire facias, by adding the following words: "and to show cause why the plaintiffs should not have execution on their judgment or decree;" to the allowance of which amendment the defendant excepted. The defendant then demurred to the amended scire facias "because it does not set out such a decree as can be revived." The court overruled this demurrer also, and rendered a decree reviving the former decree. From this decree the defendant below appeals, and here assigns it as error, together with the overruling of his demurrer to the scire facias, and the allowance of the amendment.

W. B. MODAWELL, with BAILEY & LOCKETT, for appellant.

JOHN T. VARY, with JOHN C. READ, contra.

BRICKELL, J.-The statute authorizes the revival by scire facias of a decree of the court of probate, on which an execution has not been sued out within one year after its rendition. R. C. § 2830. The process issued in this case was intended as a scire facias under this statute, but it is very defective, and subject to demurrer on several grounds. Our inquiry is, however, limited to the causes of demurrer specially assigned. If these are not well taken, other defects, however apparent, cannot avail the appellant.

The first cause of demurrer assigned is, that by the terms of

[Lowry's Administrator v. Newsom.]

said scire facias the defendant is not called on to show cause why the plaintiffs should not have execution on their decree. This objection was met and cured by an amendment in the court of probate. To the allowance of the amendment the appellant reserved an exception. A scire facias may, at the election of the party suing it out, serve as process and pleading; or he may treat it as process only, and declare upon it, as on other process. Toulmin v. Bennett, 3 Stew. & Port. 220. Whether regarded as process or pleading, it is within the statute of amendments. Sartin v. Weir, 3 Stew. & Port. 421; Miller v. Shackelford, 16 Ala. 95.

The second ground of demurrer is, that the scire facias was not made returnable to a regular term of the court of probate. If it could be conceded that the scire facias is in this respect objectionable, the defect is not matter of demurrer. A defect in process, either in the mode of suing it out, or in its return day, is the subject of a plea in abatement. A demurrer presents only defects in pleading. The fourth ground of demurrer, if it could be regarded as disclosing any valid objection to the scire facias, presents only a defect in it as process, and not as pleading, and was, for the reason we have stated, if no other, properly overruled.

The scire facias is not at all uncertain in its description of the decree sought to be revived. The court in which the decree was rendered, the day of its rendition, the accounts thereby adjudged, and the party in whose favor, and against whom it is rendered, are averred. This is certainly all that is requisite to enable the court to pronounce judgment of revivor.

The last ground of demurrer was properly overruled. If the judgment sought to be revived was improperly rendered, partly for gold, and partly for currency, the defect would be merely matter of error, or irregularity, affecting its validity only in a direct proceeding for its reversal. But, in this case, the decree was properly rendered, partly for gold, and partly for currency. It was rendered on the final settlement of the accounts and vouchers of appellant as the administrator of William Lowry, deceased. On that settlement, it was ascertained that he had, of assets, a certain sum in gold, and a certain sum in currency, distributable to the widow and next of kin of his intestate. No other decree than one distinguishing between, and distributing these sums separately, would have met the justice of the case. A decree against him for an aggregate sum in dollars, which he could have paid in legal tender currency, would have enabled him to make a profit from the assets, to which he was not in morals or law entitled. The assets in his hands belonged to the distributees, and were properly decreed to them in specie. The judgment is affirmed.