(83 South. 356)

#### GULF STATES STEEL CO. v. JONES.

(7 Div. 977.)

(Supreme Court of Alabama.

Oct. 30, 1919.)

1. Master and servant <&wkey;264(l)—Necessity OF PROOF OF ALLEGATIONS UNDER EMPLOYERS’ Liability Act.

Where a complaint based on Employers’ Liability Act, subd. 1, alleges that the injuries were -proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant used in defendant’s business, which defect arose or had not been discovered owing to negligence of defendant, such allegation is material, and must be proven to entitle plaintiff to a verdict.

2. Master anb servant <&wkey;107(8)—Temporary SCAFFOLD NOT PART OF “WAY'S, WORKS, MACHINERY, OR PLANT” WITHIN “EMPLOYERS’ Liability Act.

A temporáry scaffold, erected by brick masons to be used by them in constructing a wall, is not a part of the master’s ways, works, machinery, or plant connected with or used in his business, under 'Employers’’ Liability Act, subd. 1.

[Ed. *Note.—For*other definitions, see Words and Phrases, Second Series, Ways, Works, Machinery, or Plant.]

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action by T. S. Jones against Gulf States Steel Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Hood *&*Murphree, of Gadsden, for appellant.

The staging or scaffold which fell and injured employé was a mere temporary staging, and not a part of the ways, works, machinery, or plant of the defendant. 1 Dresser, p. 228, § 46; 2 Dresser, p. 91, § 46; Holland-Blow Stave Go. v. Spencer, 16 Ala. App. 227, 77 South. 65; Tobler v. Pioneer M. & M. Co., 166 Ala. 482, 52 South. 86; Caldwell-Watson E. & M. Co. v. Watson, 183 Ala. 326, 62 South. 859; Woodward Iron Co. v. Wade, 192 Ala. 651’, 68 South. 1008; Sloss-Sheflleld S. & I. Co. v. Terry, 191 Ala. 476, 67 South. 678; Langhorne v. Simington, 188 Ala. 337, 66 South. 85; Adasken v. Gilbert, 165 Mass. 443, 43 N. E. 199; Brady v. Norcross, 172 Mass. 331, 52 N. E. 528; Callahan v. Phillips Academy, 180 Mass. 183, 62 N. E. 260; Feeney v. York Mfg. Co., 189 Mass. 336, 75 N. E. 733; Nichols v. Boston & M. R, Co., 206 Mass. 463, 92 N. E. 711; Thompson v. City of Worcester, 184 Mass. 354, 68 N. E. 833.

W. A. Denson, of Birmingham, for appellee. No brief reached the Reporter.

MAYFIELD, J.

This is an action by an employ*! against his employer to recover damages for personal injuries received in consequence of the falling of a temporary scaffold or staging on which plaintiff was standing while working as a brick mason for the defendant. Plaintiff was employed, with others, to erect or construct a brick building —a warehouse-—and as the work progressed, and the walls were built higher and higher, the scaffolds on which the brick masons stood had to be raised or rebulf to correspond with the height of the walls. The character of the work, and the mode of constructing and reconstructing the scaffolding on which the workmen stood, was well described by one of the brick masons working with plaintiff when the scaffold fell. He said:

> “When we first started the wall we stood on the ground, and as the wall increased in height the scaffold was built, and the height of the scaffold added to as the wall went up. When the wall got too high to lay brick on it from the scaffold, *the*scaffold would be raised. First we put up a foot scaffold and got the wall something like seven feet, and then we built another scaffold. The foot scaffold was on the ground, a few brick under it, and when the ’wall got higher we raised the scaffold from time to time as the wall went up, and that progress continued as the wall increased in height until we finished the wall. The height of the scaffold would be increased as required by the brick masons until the wall was finished.”

The complaint contained a number of counts, but all were eliminated before verdict except count two. No question is raised as to those counts or the mode of their elimination.

Count 2 was tested by demurrer, but held sufficient. The trial was had on this count alone, as it was the only one which went to the jury. To this count the general issue and several special pleas were interposed. The trial resulted in a verdict and judgment for the plaintiff, and from that judgment defendant prosecutes this appeal.

[1] The important question raised by this appeal is whether or not the affirmative charge should have been given for the defendant because of entire failure of proof to establish some of the material averments of the second count. Count 2 was based on .subdivision 1 of the Employers’ Liability Act (Code 1907, § 3910). The allegation in the count that “plaintiff avers said injuries were proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant connected-with or used in the business of the defendant, which defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant and intrusted by it with the duty of seeing that the ways, works,- machinery, or plant were in-proper condition,” was material, and, of course, must be proven, to entitle plaintiff to a verdict.

*451'[2] Was the temporary scaffold which fell a part of the defendant’s ways, works, machinery, or plant, connected with or used in the business of defendant? We hold not. It was never the object or purpose of this provision of the statute to embrace or include mere temporary structures, used merely in the construction or erection of the master’s plant or business. In fact, the language used precludes a construction which would include such structure as a mere temporary scaffold on which workmen stood only while building a brick wall, which wall, when constructed, would become a part of the ways, works, plant, etc. There may be liability of the master for the injury suffered in this case, but it is not possible for the liability to be under the first subdivision of the Employers’ Liability Act, because the undisputed evidence shows the temporary platform not to be a part of the master’s works, ways, machinery, plant, etc., within the meaning of the statute. A very similar case was before the Court of Appeals in the case of Holland-Blow Stave Co. v. Spencer, 77 South. 65,1 wherein that court, following the rule declared in the text-books and adjudicated cases, including decisions x>f this court, said:

> “It is quite clear that this temporary scaffold was not a part of the ‘ways, works, machinery, or plant’ within the purview of the statute. It was altogether lacking in any degree of permanency, a characteristic essential to constitute it a part of the works or plant. ‘ “Plant,” in its ordinary sense, includes whatever apparatus is used by a business man in carrying on his business—not his stock in trade, which he buys or makes for sale, but goods or chattels, fixed or movable, live or dead, which he keeps for permanent employment in his business.’ Yarmouth v. France, 19 Q. B. § 645; Eng. Rul. Case, 217; Sloss-Sheffield S. & I. Co. v. Mobley, Adm’r, 139 Ala. 425, 36 South. 181; Huyck v. McNerney, 163 Ala. 244, 50 South. 926; Riddle v. Bessemer Soil Pipe Co., 170 Ala. 559, 54 South. 525; Employers’ Liability, Dresser, p. 228, § 46.”

While it has been held by this court in the cases cited above, and we do not desire to depart therefrom, that a ladder used by a master in the pursuit of his business as a contractor, engaged in the construction of a building, is a part of such contractor’s plant, yet it does not follow that a mere temporary device, intended for use only for the time being, is a part of the plant, “connected with or used in the business of the defendant.” The fact that the staging or scaffolding is permanent or temporary makes all the difference—in the one case it is a part of the ways, works, or plant, in the other it is not. This is well pointed out by Mr. Dresser in his valuable work on Employers’ Liability. In volume 1, § 46, p. 227, he says:

> “It has been noted that buildings in process of construction or destruction are not a part of the builder’s- ‘works.’ The stagings and scaffolds which are erected from time to time are not part of the ‘works’ unless they are of a permanent nature and used for other purposes than the particular one for which they are built. * * *

> “Under the act a temporary staging erected by the workmen themselves for the immediate purpose is not a part" of the master’s works. Nor would it seem that a staging erected by the master himself for a temporary purpose comes within the act. Where, however, the staging acquires such a degree of permanence that it is a means of carrying on the business, and not merely an incident in the accomplishment of a particular work, it becomes a part of the ways.”

Mr. Dresser thus formulates the rule as construing this subdivision of the Employers’ Liability Act as to defects, permanent and temporary. He says:

> “Defect in condition refers to the permanent or quasi permanent condition of the ways, works, or' machinery. An accident or temporary condition does not come within the meaning of the act.”

In the case of Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550, the court, construing the first subdivision of the Employers’ Liabilities Act, said:

> “It seems to us that clause 1 of this section has no -application to a case like the one before us, and that the request should have been given. It must be borne in mind that ‘the right of an employe to maintain an action under this statute is not identical with his right to maintain an action at common law. It may be greater or it may be less.’ Coffee v. New York, New Haven & Hartford R. R., 155 Mass. 21, 22 [28 N. E. 1128]. The language of the section seems to us to point to ways and works of a permanent character, such as are connected with or used in the business of an employer. Hence, in Howe v. Finch, 17 Q. B. D. 187, it was held that the section did not apply to ways or works in process of construction. And in Willetts v. Watt [1892] 2 Q. B. 92, where a workman was injured by falling into a catch-pit in the floor of a workshop, which was generally kept covered, but the cover of which was off at the time oil the accident for a temporary purpose, it was held by the Court of Appeal that there could not be said to be a defect in the condition of the way, and Lord Justice Fry said that the language of this section pointed to a defect of a chronic character.”

Our Employers’ Liability Act, like that of Massachusetts, was largely copied from the English statute, and so it has been construed by the English courts.

This court is committed to the same construction as to the permanent and temporary character of the conditions while the plant is being constructed or repaired and after it is completed. 'In the case of Sloss-Sheffield *452Steel & Iron Co. v. Terry, 191 Ala. 481, 67 South. 680, the court said:

> “We may here remark that there was no evidence tending to show a defect in the condition of the ways, works, etc., as, for instance, declared on in count 7. Langhorne v. Simington, 188 Ala. 337, 66 South. 85. Where the condition, from which the injury to the servant is declared to have resulted, was the immediate product of the progress of the work in which the servant was properly engaged, that condition could not have been a defect, within the first subdivision' of the statute (section 3910).”

In a later case it was said, quoting from a former case:

> “This doctrine has been sanctioned by this court. Tobler v. Pioneer M. & M. Co., 166 Ala. 482, 506, 52 South. 86, 95. In that case we said: ‘The duty which originally rests upon the master to furnish safe ways, works, and machinery for the time being, and for the purpose of construction or repairing, is suspended. It would be unreasonable to hold the master to the same degree of strictness, while he is constructing his plant, or repairing the ways, works, or machinery, as is required of him after he has constructed, or after the repairs have been completed and the plant is in operation.’ ” Woodward Iron Co. v. Wade, 192 Ala. 651, 68 South. 1008.

It follows *that*the general affirmative charge should have been given as to the second count, the only one which went to the jury.

As the case must he reversed on this account, the other questions need not be decided. If there was any actionable negligence shown in tbis case, it was the negligence of the servant intrusted with the duty of building the temporary scaffold, and not that relied upon in the second count.

Reversed and remanded.

ANDERSON, C. X, and SOMERVILLE and THOMAS, JJ., concur.

1

16 Ala. App. 227.