Alabama Great Southern R. R. v. Burks

41 So. 638, 148 Ala. 113, 1906 Ala. LEXIS 288

Opinion

ANDERSON, J.

This cáse Avas tried upon counts 2 .and 4, and to Avhich the demurrers interposed by the defendant were overruled by the trial court. Conceding that these two counts correctly proceed upon the theory that the plaintiff was a licensee, the evidence sIioavs the relationship of master and servant, and charges 26 and 27, the affirmative charges, should have been given.

It appears from the evidence that the employer consented to plaintiff’s services, and therefore exercised the right of selecting him, had the right to remove or discharge him, and to direct him in the rendition of the services Avhich he had undertaken. The plaintiff Avas to receive no stipulated wages, but undertook to learn the duties of a brakeman, and Avas to he given a position after he had. learned the duties. These facts showed the plaintiff to be a servant, rather than a mere licensee of the defendant.—20 Am. & Eng. Ency. Law, pp. 1, 2; Heygood v. State, 59 Ala. 51; Dresser’s Employers’ Liability, p. 52, § 8; Drennen v. Smith, 115 Ala. 396, 22 South. 442.

Reversed and remanded.

Weakley, O. J., and Tyson & Simpson, JJ., concur.