ANDERSON, J.
The counts to which demurrers were overruled and upon which this case was tried in the court below are not based upon any statutory liability under the employers’ liability act, but seek to recover damages under the common law for the negligence of the master in employing or retaining an incompetent servant to run and manipulate its elevator. The master must exercise due and reasonable care in the selection of his servants, with reference to their fitness and competency. “He must also exercise the same degree of care in the matter of the retention of his servants in his service, for his responsibility is the same whether the want of skill of a servant, or his incompetency from other causes, existed when he was hired, or has come up since, if he has been continued in the service with notice or knowledge, either actual or presumed, of such unfitness by the master. Liability on tbe part of an employer for an injury caused by the incompetency of a fellow servant depends upon its being established by affirmative proof that such incompetency was actually known by the master, or that, if he had exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. * * * The presumption is that the master has exercised proper care in the selection of the servant. It is incumbent on the party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master or company, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. But such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of. .So it is proper, when repeated acts of carelessness and inccmpetency of a certain character are shown on the part of the servant, to leave it to the jury whether they did come to the knowledge if he had exercised ordinary care.. * * * It is understood, of course, that the incompetency of the servant in all cases, in order to charge the master, was the proximate cause of the injury. The mere fact that the servant was incompetent and the [308]*308master had knowledge thereof is of no importance, unless therein is found the cause of the injury, or a cause contributory thereto, without which it might have been avoided or not have happened.” — Bailey on Master’s Liability for Injuries to Servants, 47, 54, 70 ;Laning v. R. R. Co. of New York, 49 N. Y. 521, 10 Am. Rep. 417; Chicago & G. E. R. R. v. Harney, 28 Ind. 28, 92 Am. Dec. 282; Michigan Central R. R. v. Gilbert, 46 Mich. 179, 9 N. W. 243; Kersey v. Kansas City R. R. 79 Mo. 362; Hayes v. Western R. R., 3 Cush. 270; Johnston v. Pittsburg W. R. R. Co., 114 Pa. 443, 7 Atl. 184.
It seems to be the rule at law that, in order for the plaintiff to recover against the defendant, he is bound to show by affirmative testimony: (1) That the injury was the result of the act or omission of some fellow servant,; (2) that said fellow servant was incompetent for the duty he had to perform; (3) that the fact of his incompetency was known to the defendant, or that it or its manager or superintendents, acquired a knowledge of it during hi® employment and before the accident, or by due diligence could have learned of his incompetency. Snodgrass v. Carnegie Steel Co., 173 Pa. 228, 33 Atl. 1104. Negligence such as unfits a person for service, Or such as renders it negligent in a master to retain him in the employment, must be habitual, rather than occasional or of such a character a® to render it imprudent to retain him in service. A single exceptional act will not prove a person incapable or negligent. — Conrad v. Gray, 109 Ala. 130, 19 South. 398; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Harvey v. Railway Co., 88 N. Y. 481; Couch v. Coal Co., 46 Iowa 17; Huffman v. Ry. Co., 78 Mo. 50. It is also a rule of the common law, still in force, that if the servant knew of the incompetency of the offending servant as well as the master, or had equal knowledge, and, notwithstanding such knowledge, continued in the employment without objection, he waives the negligence of the master in this respect. — Laning v. Railway Co., supra; Wright v. Railway Co., 25 N. Y. 566; Mad River & L. E. R. R. v. Barber, 5 Ohio St. 563, 67 Am. Dec. 312.
The grounds of the demurrer to the effect that the complaint fails to aver that the fellow servant, Lewis, [309]*309had any superintendence intrusted to him, or that it fails to aver any of the essentials to a recovery under the employers’ liability act (section 1749 of the Code of 1896), were without merit. The complaint avers a common-laAV liability for injuries due to the negligence of Archibald Lewis, resulting from the incompetency of LeAvis, and that defendant knew of his incompetency and negligently retained him. If the plaintiff knew of the incompetency of LeAvis before going into the shaft, that Avould be defensive matter, and it is not necessary for the complaint to negative the fact. Nor was it necessary for the complainant, in charging negligence, to state the quo modo. — Chambliss’ Case, 97 Ala. 171, 11 South. 897 ;Davis’ Case, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47 ;K. C., M. & B. R. R. Co. v. Sanders, 98 Ala. 293, 13 South. 57; Conrad v. Gray, 109 Ala. 130, 19 South. 398. The demurrers to the first count were properly overruled. The demurrers to the third count are the same as those filed to the first, and simply seek to “thresh over old straw,” and were properly overruled.
The ninth count charges the defendant with negligence for the failure to exercise reasonable diligence to inform itself of the unfitness of the said Lewis, and it was not necessary to lay the failure to some one intrusted with the management and superintendence. The demurrers to the count were properly overruled. The demurrers to the eleventh count have been treated under the first and ninth counts, and were properly overruled.
The demurrers to the twelfth and thirteenth counts as amended were properly overruled. We do not understand the amended counts to be a departure from the original cause of action.
The demurrers to pleas 6, 8, and 9 were properly sustained. The fact that the plaintiff stated that he had only a small amount of work to do and he would be through with it in a few minutes did not justify said Lewis in causing said elevator to descend in the shaft, within an hour, without having first ascertaining whether the plaintiff was in said shaft, as the plea does not aver that the statement was made to Lewis or any one else authorized to act, upon the statement. — Williamson [310]*310v. Jones, (W. Va.) 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891.
The seventh plea was subject to the demurrer interposed. The fact that the plaintiff told the operator that the descent of the elevator at the time Pelzer wished to go np to the first floor could be made was no license to the operator to continue to come down or to go to the basement.
Pleas 10 and 11 set up no defense to the action, and the demurrers were properly sustained.
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ANDERSON, J.
The counts to which demurrers were overruled and upon which this case was tried in the court below are not based upon any statutory liability under the employers’ liability act, but seek to recover damages under the common law for the negligence of the master in employing or retaining an incompetent servant to run and manipulate its elevator. The master must exercise due and reasonable care in the selection of his servants, with reference to their fitness and competency. “He must also exercise the same degree of care in the matter of the retention of his servants in his service, for his responsibility is the same whether the want of skill of a servant, or his incompetency from other causes, existed when he was hired, or has come up since, if he has been continued in the service with notice or knowledge, either actual or presumed, of such unfitness by the master. Liability on tbe part of an employer for an injury caused by the incompetency of a fellow servant depends upon its being established by affirmative proof that such incompetency was actually known by the master, or that, if he had exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. * * * The presumption is that the master has exercised proper care in the selection of the servant. It is incumbent on the party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master or company, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. But such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of. .So it is proper, when repeated acts of carelessness and inccmpetency of a certain character are shown on the part of the servant, to leave it to the jury whether they did come to the knowledge if he had exercised ordinary care.. * * * It is understood, of course, that the incompetency of the servant in all cases, in order to charge the master, was the proximate cause of the injury. The mere fact that the servant was incompetent and the [308]*308master had knowledge thereof is of no importance, unless therein is found the cause of the injury, or a cause contributory thereto, without which it might have been avoided or not have happened.” — Bailey on Master’s Liability for Injuries to Servants, 47, 54, 70 ;Laning v. R. R. Co. of New York, 49 N. Y. 521, 10 Am. Rep. 417; Chicago & G. E. R. R. v. Harney, 28 Ind. 28, 92 Am. Dec. 282; Michigan Central R. R. v. Gilbert, 46 Mich. 179, 9 N. W. 243; Kersey v. Kansas City R. R. 79 Mo. 362; Hayes v. Western R. R., 3 Cush. 270; Johnston v. Pittsburg W. R. R. Co., 114 Pa. 443, 7 Atl. 184.
It seems to be the rule at law that, in order for the plaintiff to recover against the defendant, he is bound to show by affirmative testimony: (1) That the injury was the result of the act or omission of some fellow servant,; (2) that said fellow servant was incompetent for the duty he had to perform; (3) that the fact of his incompetency was known to the defendant, or that it or its manager or superintendents, acquired a knowledge of it during hi® employment and before the accident, or by due diligence could have learned of his incompetency. Snodgrass v. Carnegie Steel Co., 173 Pa. 228, 33 Atl. 1104. Negligence such as unfits a person for service, Or such as renders it negligent in a master to retain him in the employment, must be habitual, rather than occasional or of such a character a® to render it imprudent to retain him in service. A single exceptional act will not prove a person incapable or negligent. — Conrad v. Gray, 109 Ala. 130, 19 South. 398; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Harvey v. Railway Co., 88 N. Y. 481; Couch v. Coal Co., 46 Iowa 17; Huffman v. Ry. Co., 78 Mo. 50. It is also a rule of the common law, still in force, that if the servant knew of the incompetency of the offending servant as well as the master, or had equal knowledge, and, notwithstanding such knowledge, continued in the employment without objection, he waives the negligence of the master in this respect. — Laning v. Railway Co., supra; Wright v. Railway Co., 25 N. Y. 566; Mad River & L. E. R. R. v. Barber, 5 Ohio St. 563, 67 Am. Dec. 312.
The grounds of the demurrer to the effect that the complaint fails to aver that the fellow servant, Lewis, [309]*309had any superintendence intrusted to him, or that it fails to aver any of the essentials to a recovery under the employers’ liability act (section 1749 of the Code of 1896), were without merit. The complaint avers a common-laAV liability for injuries due to the negligence of Archibald Lewis, resulting from the incompetency of LeAvis, and that defendant knew of his incompetency and negligently retained him. If the plaintiff knew of the incompetency of LeAvis before going into the shaft, that Avould be defensive matter, and it is not necessary for the complaint to negative the fact. Nor was it necessary for the complainant, in charging negligence, to state the quo modo. — Chambliss’ Case, 97 Ala. 171, 11 South. 897 ;Davis’ Case, 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47 ;K. C., M. & B. R. R. Co. v. Sanders, 98 Ala. 293, 13 South. 57; Conrad v. Gray, 109 Ala. 130, 19 South. 398. The demurrers to the first count were properly overruled. The demurrers to the third count are the same as those filed to the first, and simply seek to “thresh over old straw,” and were properly overruled.
The ninth count charges the defendant with negligence for the failure to exercise reasonable diligence to inform itself of the unfitness of the said Lewis, and it was not necessary to lay the failure to some one intrusted with the management and superintendence. The demurrers to the count were properly overruled. The demurrers to the eleventh count have been treated under the first and ninth counts, and were properly overruled.
The demurrers to the twelfth and thirteenth counts as amended were properly overruled. We do not understand the amended counts to be a departure from the original cause of action.
The demurrers to pleas 6, 8, and 9 were properly sustained. The fact that the plaintiff stated that he had only a small amount of work to do and he would be through with it in a few minutes did not justify said Lewis in causing said elevator to descend in the shaft, within an hour, without having first ascertaining whether the plaintiff was in said shaft, as the plea does not aver that the statement was made to Lewis or any one else authorized to act, upon the statement. — Williamson [310]*310v. Jones, (W. Va.) 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891.
The seventh plea was subject to the demurrer interposed. The fact that the plaintiff told the operator that the descent of the elevator at the time Pelzer wished to go np to the first floor could be made was no license to the operator to continue to come down or to go to the basement.
Pleas 10 and 11 set up no defense to the action, and the demurrers were properly sustained. The complaint charges the elevator boy, LeAvis, wdth being incompetent because of carelessness and inattention, and the fact that he disobeyed the defendant’s orders is but an averment of .his unfitness and does not relieve the defendant from liability, as the charge against the defendant is for keeping an incompetent servant. If he disobeyed his master’s instructions, that Avas but an act of inattention to his duties. The authority cited and relied upon by counsel for appellant to sustain the position that the master is not liable for injuries resulting from disobedience of his orders.— (Laughran v. Brewer, 113 Ala. 518, 21 South 415) has no application to- this case. .In that case the very gist of the action was the act or omission, made or done in obedience to the rules of the master and under the employers’ liability act. The case at bar is under the common-laAV liability for keeping an incompetent servant, and disobedience to orders is but an act of incoinpetency.
It is insisted, however, that no sufficient ground of demurrer Avas interposed to the tenth plea. The grounds interposed to the fourth plea were set up to the tenth, and Ave think the fourth ground thereof is sufficient to test the sufficiency of the plea. It is harmless error to improperly sustain a demurrer to certain pleas, Avhere the defendant has the benefit of all the matters set up therein under pleas remaining. — Taylor v. Corley, 113 Ala. 580, 21 South. 404; Smith v. Heinemam, 118 Ala 195, 24 South. 364, 72 Am. St. Rep. 150; Booth v. Dexter, 118 Ala. Ala. 369, 24 South. 405; Farley Bank v. Henderson, 118 Ala. 441, 24 South. 428. The defendant got the full benefit of plea 12 under the general issue.
[311]*311Pleas 13 and 14 simply aver that the plaintiff knew of the said Lewis’ ability to operate the elevator, but does not charge him with knowledge of the incompetency of the said Lewis, due to his carelessness and inattention, and the demurrers were properly sustained.
The objection to the question to the witness Hastings, “Was Lewis a wide-awake, attentive boy during the time he was engaged in his duties?” Avas certainly not based Upon a good ground, “that it called for an opinion and the witness was not an expert.” We do not accept it as calling for an opinion; but, if it did, it related to a subject that did not require expert evidence as to an opinion. It requires no expert to tell how a person looks — if sleepy or aAvalce, if nxad or in a good humor, if excited or quiet and composed. Nor did the court err in excluding the answer. Tihe answer, if an opinion, Avas but the mere shorthand rendering of the facts, and could be given, subject to cross-examination as to the facts on which it is based. — South & North Alabama R. R. v. McLendon, 63 Ala. 266; Raisler v. Springer. 38 Ala. 703, 82 Am. Dec. 736; Avary v. Searcy, 50 Ala. 54; Wharton on Evidence, § 510. Nor did the trial court err in referexxce to the similar qxxestion to and answer of the Avitness Cody.
The motion to exclude the testimony of Murphy that he had been informed of the conduct of LeAvis was properly overruled. Murphy had testified that he had charge of the building; that Baldwin, the president, and the man who hired Lewis, told him “to look after the operation of the elevator and to take charge of Archie Lewis.” It is not material that he had no authority to discharge Lewis. He had axxthority to look after him, and it was his duty to report his misconduct to his superior.
Charges 1 to 6, inclusive, were properly refused. The evidence made- it clearly a question for the jury, and the defendant was not entitled to the general affirmative charge under any of the counts.
Charge 7 was properly refused. Even if the slipping of the brake caused the injury, the jury could have found that the slipping of the brake was caused by the inattention or carelessness of the elevator boy Lewis.
Charge 11 Avas properly refused. If Murphy told Bryant to go to the basement in the elevator and take the rug [312]*312¡and Bryant so informed Lewis, and Lewis took the elevator down as a result of said instruction, the jury could have inferred that Lewis was negligent in making the descent without first ascertaining if plaintiff was still in the shaft.
Charge 8 was properly refused. Even if plaintiff did tell Lewis to bring the elevator down, it was no license to him to continue to do so. Besides, the plaintiff testified that he told him not to come after that one time.
Charge 10 was properly refused. If not otherwise bad, it is hypothesized on the running óf the elevator to the first floor, when the evidence shows that the injury was caused by running it below the first floor and upon the plaintiff while in the basement.
Charge 9 was properly refused. The injury may have been caused by Murphy telling Bryant to take the carpet to the basement on the elevator, yet the jury might infer that Lewis was negligent in going down with the elevator. It is true the charge asks a finding for the defendant if “the injury was caused any other way than by the neglect of Lewis.” But these are alternative and disjunctive postulations, all of which ignore the negligence of Lewis except the last one.
There was no error in rendering the verdict for $3,500. There is nothing in the contention that it was in excess of the sum claimed in counts 12 and 13. Said counts were for $15,000, and were amended after demurrer was sustained by setting out special damages, and which did not contain in the estimate anything for future incapacity. Beside®, if said counts did claim less than the amount recovered, there were other counts that claimed more, and the verdict was referable to the good counts.
In view of the evidence, practically undisputed as to the character of injuries sustained, and which are of a permanent nature, we do not consider that the sum awarded was excessive. The motion for a new trial was properly overruled.
The judgment of the city court ie affirmed.
McClellan, C. J., and Dowdell and Denson, JJ.,' concur.