Louisville & Nashville Railroad v. Cook

53 So. 190, 168 Ala. 592, 1910 Ala. LEXIS 551

• Court: Supreme Court of Alabama
• Decided: February 6, 1910
• Status: Published

Opinion

MAYFIELD, J.

The third count of the complaint was as follows: “Plaintiff claims of the defendant the sum of $30,000 as damages for injuries received ,hy him on, to wit, the 15th day of A[ugust, 1907. On or about said date, the defendant wa.s a corporation engaged, among' other things, in running freight trains composed of engines and freight cars from Nashville, Tenn., to Decatur, Ala. On or about said date, plaintiff was an employee of the defendant and was one of a crew, on one of defendant’s said trains, and was engaged in his duties as fireman on one of defendant’s engines; and while so as aforesaid engaged in his duties on an engine running between Nashville, Tenn., and Decatur, Alla., at or near Riversburg, Tenn., and while the train was running at a rapid rate of speed, to wit 35 miles an hour, about 2 o’clock a. m. on said date, while it was quite dark, the steam rushed out of the boiler on said engine in a great volume and enveloped the engine where the plaintiff was engaged at work. And plaintiff avers that in his effort to escape from the hot and scalding steam, which stifled and blinded him, and in the confusion attendant on the sudden inrush of the steam, he fell or was thrown from said rapidly moving engine, down to and on the ground, from which he sustained serious and permanent injuries, in that his .skull was fractured and broken, necessitating the removal of large portions thereof from the top of his head, and plaintiff was unconscious for a long time, to wit, two days, and suffered for a long time great physical and mental pain, and still suffers great suspense by reason of the removal of his said skull and by reason of the lack of protection to his brain and the continuous danger to which he is subjected. And plaintiff avers that he sustained a flesh wound on his right leg, and his right knee was badly injured, which was for a long time painful to plaintiff, and still is stiff, sore, and weak. And plaintiff avers that he received the said injuries by reason of and as a proximate consequence of the failure of the defendant to exercise ordinary care in keeping-said engine in reasonably safe repair.”

The complaint was subsequently amended as follows.: “(1) Under the laws of the state of Tennessee, it was the nondelegable duty of the defendant to use reasonable care in furnishing plaintiff a reasonably safe engine upon which to work, and also to use reasonable care in keeping the said engine in a reasonably safe state of repair. (2) By averring his injuries to be, in addition to those stated in the complaint, as follows: His spine was wrenched, displaced, twisted, and permanently injured. (3) By striking- out of count 3 the last sentence, and averring in its place the following: On said occasion, the said engine was out of repair, unsafe, and unfit for service; and plaintiff received his said injuries by reason, and as a proximate consequence of, the failure of defendant to exercise reasonable care in keeping said engine in reasonably safe repair.”

The final judgment entry was as follows: “Comes the parties by their attorneys into open court. On motion of the plaintiff it is ordered by the court that the testimony in this cause be published. Plaintiff amends his complaint to meet the evidence, .by amendment ‘Y.’ Whereupon the defendant demurs, and assigns grounds of demurrer 1, 2, and 3, and, said grounds of demurrer being submitted to and duly considered by the court, it was considered and adjudged by the court that said grounds of demurrer be, and they are hereby, overruled. Defendant filed plea No. 3 to complaint as amended, June 12, 1908. Plaintiff withdraws first and second counts of the complaint. Issues having been formed in open court on count No. 8 as amended and plea No. 3. Let a jury come. Thereupon came a jury of good and lawful men, to wit, W. P. Davis and 11 others, who being impaneled and sworn to well and truly try the issues in this case upon their oaths, do say: ‘We, the jury, find for the plaintiff and assess his damages at the sum of twenty thousand dollars ($20,000.00).’ It is therefore considered and adjudged by the court that the plaintiff have and recover of the defendant the sum of $20,000, besides all the cost in this behalf expended, for all of which let execution issue.”

It will be observed that the record proper shows that the plaintiff withdrew counts 1 and 2, and that issues were formed alone on count S' as amended, and plea No. 3, while the bill of exceptions does not make it clear as to whether there were any other issues or not; but, as the record proper is the proper expositor of the issues and rulings upon the pleadings, we must treat the pleadings and issues as shown by it. There is no such uncertainty nor apparent omission in the record proper or in the judgment entry, as that we can look to the bill of exceptions to determine the issues; and, if we could, the bill of exceptions would not inform us. — Dannelly v. State, 130 Ala. 135, 30 South. 452; Brinson v. Edwards, 94 Ala. 447, 10 South. 219; McLendon v. Grice, 119 Ala. 513, 24 South. 846. We must therefore treat the case as being tried alone upon the issues raised by count 3 as amended, and plea No. 3.

Counts 1 and 2 were expressly withdrawn, and thus eliminated from the complaint. No possible injury could have resulted to defendant as to ruling upon demurrers thereto.

The averments as to negligence on the part of the master, relied upon in count '3 as amended, are very general — hut little more than conclusions of the pleader — but under the rules of-pleading as to such counts, so often declared by this court, we must hold that the count was not subject to any ground of demurrer interposed thereto.

Appellant contends that the action was brought under the employer’s liability act of this state (Code 1907, § 3910). In this it is clearly in error. There is not the slightest attempt to bring the action under that statute, and intimations or inferences that it was so brought are studiously avoided. In fact, it expressly declares solely upon the common-law liability of the master. There is an attempt to declare upon the common-law liability as it exists in Tennessee and not as it exists in Alabama. This last phase of the case will be treated more fully hereafter.—Jones’ Case, 83 Ala. 382, 3 South. 902; Lile’s Case, 154 Ala. 556, 45 South. 699; Walch’s Case, 132 Ala. 497, 31 South. 470; Guyon’s Case, 122 Ala. 239, 25 South. 34; Miller’s Case, 120 Ala. 542, 24 South. 955.

The challenges of jurors for cause, enumerated in the statutes, are not exclusive of all other grounds for such challenges. The jurors excluded by the court on the ground that they were employees of the defendant were clearly subject to challenge for cause. It appears that the court excluded them only at the request of one of the parties, and, as the others who were subject to the same challenge were allowed to remain by the express consent of both parties, no injury can be held to have resulted. The defendant had the opportunity to challenge the others for cause, as did the plaintiff those who were excused, and it declined to exercise its option, after request by the court so to do. It cannot now complain of tliat which it conld and should have avoided. It had no right to have two of its other employees serve on the trial of its case, and cannot and should not complain of the court’s excusing them — no matter in what manner — if it was not thereby deprived of a right.—State v. Marshall, 8 Ala. 302; Carr’s Case, 104 Ala. 4, 16 South. 150; Brazleton’s Case, 66 Ala. 96; Gayle’s Case, 155 Ala. 204, 46 South. 261.

There was no error in allowing the plaintiff to testify that he had noticed the pounding in other engines, similar to that in the one which he alleges injured him. It was proper to show the experience and capacity of the witness to know the facts as to which he was testifying.

The injury to the servant having occurred in Tennessee, and the negligence of the master, if any, having occurred in Tennessee, the law of Tennessee, and not that of Alabama, must control, as to the duties and liabilities of the master to the servant.—Carroll’s Case, 97 Ala. 126, 11 South. 803; Railroad v. Foster, 10 Lea (Tenn.) 351.

Tennessee being of common origin Avitli Alabama, this court, in the absence of proof, Avill presume that the common laAV of this state prevails in Tennessee. This, hoavever, is not a conclusive presumption; it yields to averment and proof. It may he shoAvn that the common or unAA’ritten law of the two states has been changed by Constitutions or statutes, or that, by local usage and different institutions and conditions, the common law of neither state is in all respects the same as English common law, and that, for the same reason and on the same account, the common or unwritten law of the two states, though of the same origin, is different.

The common law of England was never adopted by the United States, nor by any one of them, as an entirety, but only those parts which were adapted and applicable to the needs and spirit and genius of the institutions of the respective sovereigns; yet the English common law, in part, as changed or modified by Constitutions-, statutes, customs, conditions, or decisions of the Supreme Courts of most of the states, has become the common law of such states — certainly so as to Alabama and Tennessee.—Birmingham Waterworks Co. v. Hume, 121 Ala. 170, 25 South. 806, 77 Am. St. Rep. 43; Stae v. Cawood, 2 Stew. 360; Burt v. State, 39 Ala. 617; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374; Peet v. Hatcher, 112 Ala. 514, 21 South. 711, 57 Am. St. Rep. 45.

Not only the common law of England.- in part, as above defined, but some parts of her statutory law as it existed before our ancestors emigrated therefrom, became in a sense incorporated in our unwritten or common law; but the English statutes, like the common law proper, only became a part of the law of each state, when not inconsistent with the institutions, government, and laws of such state.—Horton v. Sledge, 29 Ala. 478.

While this court will presume that the common law prevails in Tennessee, this prima facie presumption is-to the effect that it is the same in Tennessee as in Alabama ; but this is not conclusive. It may be averred and proven in the courts to be different from the common-law of this state, and if relied upon as being different,, as the basis of a cause of action in the courts of this state it must be averred and proven as it exists in such-other state.

If a. party desires to avail himself of a common-law ruling prevailing in another state, which differs from the common-law ruling of this forum, he must both plead and prove the rule as relied upon in the foreign state. The courts of our state cannot take judicial notice of the laws of another state. They may in certain cases presume that the law of another state is the same as that of Alabama, but cannot presume that it is other than that of this state.

When the foreign law is so pleaded, and evidence is introduced to prove it, it is the common law as understood in the other or foreign state, and not necessarily the common law of the state of the fornm, which is to be ascertained and applied.—Inge v. Murphy, 10 Ala. 885; Root v. Kansas City Co., 195 Mo. 348, 92 S. W. 621, 6 L. R. A. (N. S.) 213, and note; Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456, 67 L. R. A. 34, and note, 105 Am. St. Rep. 381.

Some courts hold that they can, or will, determine what the common law of another state is, only by reference to their own decisions — that the decisions of another state are evidence only of the common law, but not so high or so binding as the decisions of courts of their own state. That is, they determine for themselves what the common law of another state is, notwithstanding the decisions of the courts of such other state. But the courts are very few which hold to this view, the great majority seeming to hold in line with, and to follow, the authority of our own case of Inge v. Murphy, 10 Ala. 894. A great number, if not all, are cited and reviewed in the notes to the .cases reported in the L. E. A. cited above.

So it conclusively follows that the merits of the case, and the liabilities, duties, and rights of the parties to this controversy, must be determined by the law of Tennessee; and, under the pleadings and the issues in this case, by the common law of Tennessee as it is here alleged and proven to be.

Though the defendant should be liable under the laws of Alabama, the plaintiff conld not recover, under these issues, unless the defendant he also liable under the laws of Tennessee, and it is the common law alone of Tennessee which must determine the rights, as distinguished from the remedy, of the parties to this suit; but, in the absence of proof as to the common law of Tennessee, this court will and must presume it to be the same as the common law of Alabama.

The complaint as amended alleged that: “Under the laws of the state of Tennessee, it was the nondelegable duty of the defendant to use reasonable care in furnishing plaintiff a reasonably safe engine upon which to work, and also to use reasonable care in keeping said engine in a reasonably safe state of repair.” If this can be said to allege that it was the nondelegable duty of the master to keep this engine in a reasonably sáfe state of repair, as well as to furnish it originally, then it alleges the law of Tennessee to be different from that of Alabama; but if it alleges that duty to furnish, only, is nondelegable, and not the duty to maintain in a reasonable state of repair, then it simply alleges the common law of Tennessee to be exactly what it is in Alabama. The allegation in this particular is not as cer-. tain ás it might be; but it seems to have been treated by both parties and the court as alleging the law of Tennessee to be different from that of Alabama in this respect, and we will so treat it.

This being a material averment, it devolved upon the plaintiff to prove it. No statute or constitutional provision was offered to prove it, and no witness learned in the law of Tennessee was offered to prove it. But two decisions of the Supreme Court of Tennessee were offered in evidence to Drove this averment of the complaint, or to prove the common law of Tennessee on this subject. The decisions were properly verified and certified to make them admissible and relevant evidence for this purpose. The decisions were in the cases of Guthrie v. L. & N. R. R. Co. and Picard v. Cooperage Co. The former was reported in 11 Lea (Tenn.) 372-382, 47 Am. Rep. 286, while the latter seems not to have been officially reported, or, if it was, the record shows no reference to it.

AYe have examined and studied these decisions carefully, and we do not think that either, or both together, show the law of Tennessee to be as alleged; that is, that the duty of the Master (the defendant in this case) to maintain the engine in a reasonably safe state of repair was nondelegable. There are expressions in both cases which may be said to tend in that direction; but they do not clearly or expressly so declare the law, and such expressions as used in these cases in each instance are dicta, or used arguendo. Such expressions were not necessary to a decision of either case under discussion, nor was the law of Tennessee, as alleged, necessary to be decided in either case. Hence if the expressions in the opinions had declared the law to be as alleged, these decisions would not be binding on the Supreme Court of Tennessee, much less on the courts of other states.

Those decisions offered in evidence do decide (as well as do others which we have examined, both of our state and of Tennessee) that the common-law duties and liabilities of master and servant are different in the two states, but not in the respect averred in the complaint. The fellow-servant doctrine has been held by the Supreme Courts of both states to be different in the two states. Certain servants or employees of a common master have been held to be fellow servants in Alabama, while in Tennessee servants of the same class or kind were held not to be fellow servants. The exact difference was pointed out by the Supreme Court of Tennessee in the case of N. C. & St. L. Ry. v. Foster, 10 Lea, 352, and the same cases were reviewed by Justice McClellan in Carroll’s Case, 97 Ala. 126, 11 South. 803.

In Thomas’ Case, 42 Ala. 672, this court held that an inspector of engines was a fellow servant of a fireman; both being employees of a common master, a railroad company. The common law of Alabama was enforced by the Courts of Tennessee in the case of N. C. & St. L. Ry. v. Foster, supra; the Tennessee court holding that the law of Tennessee was different in that respect, but that the law -of Alabama was applicable to the case on trial and would be enforced by the courts of Tennessee, notwithstanding the law of that state was diffent.

These cases were reviewed in Carroll’s Case, 97 Ala. 126, 11 South. 803, and reaffirmed by this court; but none of them declared the law of Tennessee to be as averred. In fact, we think the law of Tennessee is declared by the Supreme Court of Tennessee to be different from what it is alleged to be, in the complaint, different from that as declared by the trial court in this case, and different from that contended for by counsel for appellee.

The case of Knoxville Co. v. Dodson, 7 Lea. (Tenn.) 367, clearly recognizes and declares the rule to be that the master is not liable to all his servants for the negligence of all his other servants in their failure to repair appliances, and that he is not liable to a servant for failure to maintain tools or appliances in a reasonably safe condition, provided he had employed reasonable, safe and competent servants to maintain and repair, and had intrusted to them that duty. The first case cited in that opinion, to this proposition, is one of our own.—M. & M. R. R. Co. v. Smith, 6 Reporter, 264.

This rule, of course, is limited to fellow servants, and the master would he liable to a servant for such failure to maintain or repair, if the' servant injured was not a fellow servant of the one guilty of negligence.

This is likewise the common law in Alabama; the difference of the law in the two states being that the fellow-servant doctrine is more restricted in Tennessee than in Alabama. The doctrine is not entirely abrogated in Tennessee; it is only more restricted. It is, however, we think, true that the engine inspector or repairer of a railroad company, whose only and sole duty is to inspect and repair engines, is not a fellow servant of a fireman or brakeman on the engines so inspected and repaired; and that his act in so inspecting and repairing is the act of the master, so far as the fireman and brakeman are concerned. But we are not prepared to say that the fireman and engineer are not fellow servants under the law of Tennessee. As to this, however, we do not decide.

While it is the law of Tennessee as to which we are inquiring in this case, and we will follow that law as declared if not against the public policy of the law as declared by this court, yet this court will not declare the law of Tennessee to be as declared by some one decision of the Supreme Court of that state. The Supreme Court of Tennessee does not consider itself bound by any one decision in all other subsequent cases, and this court would not consider itself so bound forever by any one decision, though rendered by the court iself, uot even on a subsequent appeal in the same case; this much is enjoined upon this court by statute. — Code, § 5965. But this court would feel bound by what it conceived to be the settled law of Tennessee, and as settled-by that court, if so settled. That is the proper court to decide what is the law of Tennessee. For example, if the plaintiff introduced a witness learned in the law of Tennessee to prove what the law of that state was, as to the issue involved, we would consider it, but would not feel bound thereby to find it as declared by the witness, and we would still examine the decisions of that court, and the law of that state as we could find it; and in the same manner we do not feel bound or restricted to the decisions only of that court introduced in evidence.—Inge v. Murphy, 10 Ala. 894. See Root v. Kansas City Co., 195 Mo. 348, 92 S. W. 621, 6 L. R. A. (N. S.) 213, and note; Charlotte v. Chouteau, 25 Mo. 465; Hancock Nat. Bank v. Ellis, 172 Mass. 39, 51 N. E. 207, 42 L. R. A. 396, 70 Am. St. Rep. 232; Cook v. Bartlett, 179 Mass. 576, 61 N. E. 266; Story on Corp. Laws, § 638; 1 Greenl. Ev. 486.

The most the decisions of the Supreme Court of Tennessee show is that it is the duty of the master to maintain the appliances in a reasonably safe state of repair; but they do not show that this duty is nondelegable, which is the allegation of the complaint.

It is urged by appellant that the courts of this state have no jurisdiction of this action, because the injury and negligence relied upon occurred in another state, the defendant being a foreign corporation, and it invokes the rule declared by this court in Carr’s Case, 76 Ala. 389, 52 Am. Rep. 339, and in Harrison’s Case, 122 Ala. 149, 25 South. 697, 82 Am. St. Rep. 68.

To this the plaintiff replies that this rule or doctrine or law is changed by the act of the Legislature at the last extraordinary session, contending that the effect of that- act- was to give the courts of this state jurisdiction of actions like this, which it. did not have before. See .Acts Ex. Se.ss. 1907, p. 67.

It is both unnecessary and improper for us to pass upon these questions, because the defendant made no attempt to raise tlie question of jurisdiction of the person in the lower court, and as to the subject-matter there is no evidence to show whether defendant is a domestic or foreign corporation.

Chief Justice Dowdell concurs in the conclusion reached by the writer, to the reversal of the case, upon the failure of the proof to support the averments of the complaint, without committing himself to all that is said in the text in reference to the common law.

For the errors pointed out the judgment must be reversed, and the caused remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur in the conclusion.

McCLELLAN, J. — The injury, for which this action •was brought, having occurred in the state of Tennessee, it was averred in the complaint that “under the laws of the state of Tennessee it was the nondelegable duty of the defendant to use reasonable care in furnishing plaintiff a reasonably safe engine upon which to work, and also to use reasonable care in keeping said engine in a reasonably safe state of repair.” The gist of the averments is that the two duties stated are nondelegable in that state. The import of the key word of the averment is that the duties alleged are, in that state, incapable of delegation. In the parlance of the law of master and servant the term “delegate,” as respects duty, has come to have a well-understood meaning. It does not have reference, when applied to duty, and liability for its breach, to' the mere agencies necessary to the performance of the duty. When definitive of the place of repose of a duty, it imports obligation — obligation to order conduct, to conform action, or to refrain from action, consistent with the definite mode, though it has been said, and doubtless well, abstractedly speaking, that “duty” is a stronger- term than “obligation.” As terms, they are often employed synonymously; so that, when it is declared that a duty is nondelegable, the statement does not import the mere assignment of the performance of the duty — the mere designation of the means to perform' it.

In this state, the duty to afford the servant a reasonably safe place in which to work is nondelegable; but the mere manual agencies to perform that duty may be, and must of necessity be, assigned to others than the master.

The averment quoted, as in all cases of the kind, must be proven as any other fact alleged; it not being-consistent with the view of the common law prevailing in this state. Courts of this state cannot take judicial cognizance of the state of the law in another state, though the prevalence of the common law, as viewed here, in states of common law origin, will be presumed if the contrary is not shown. Many of our decisions supporting the statements are collated in: 2 May. Dig. p. 663 et seq.; 3 May. Dig. p. 439. See, also, Bender v. Reynolds, 12 Ala. 457, 458; Sidney v. White, 12 Ala. 728-732; Johnson v. State, 88 Ala. 176, 7 South. 253.

Being a matter of allegation and evidence, this court, in reviewing in its sole capacity, in such cases, of an appellate tribunal, cannot look beyond the four corners of the record of the tidal court below for or to any statute or decision that will aid proof of the allegation of the foreign law or that will, refute proof to that end offered or made in the court below. A departure from this settled doctrine would inevitably result in a trial de novo, on that issue, in this tribunal — a jurisdcton and power not possessed, in such cases as this, by this appellate tribunal.

In Johnson v. State, 88 Ala. 176, 180, 7 South. 253, this court expressly declined to consider a decision of the supreme Court of Tennessee because it was “not put in evidence.” There is no decision of this court to the contrary. The decision in Inge v. Murphy, 10 Ala. 885, is not opposed to the conclusion stated. Indeed, in that case, where the trial judge improperly submitted the construction of the law of North Carolina to the jury, it was said: “For ourselves, we must decline to examine the question of what the law is, or what is the legal effect of the decision of the North Carolina courts, upon the rights of the parties, until these matters shall he first decided hy the cowt of original jurisdiction (Italics supplied.)

That the court of original jurisdiction could not decide the matter of construction without the subject-matter for such a decision being offered in evidence, it is impossible to doubt.

The construction of statutes and decisions offered in evidence in such cases, is of course a question for the court, alone, to decide.—Inge v. Murphy, supra. But if the law of another state be undertaken to be proven or disproven by a witnes, and a conflict in their testimoney occurs upon the fact of the law of that state— not upon its construction — I am not yet prepared to say that the court should also (in addition to construing the law as testified to by the opposing witnesses, respectively) assume the functions of instructing the jury what, of the different laws deposed to, the jury should find was the law of the foreign state. Indeed, it is my present opinion that the court would, if it did so, in that character of case, invade the province of the jury, and, in consequence, err. There may be a wide distinction, practically important in the case of conflict in evidence indicated, between the construction of a given law and a finding of fact of what is the law in another jurisdiction, where witnesses differ as to the fact of the existence vel non of the law, whatever its construction.

Whatever may be the rule elsewhere, reason and harmonious decision in this state limit this court, in reviewing the inquiry of proof vel non of the allegation quoted from the complaint in the case at bar, to the evidence before the trial court. This of course implies the right and duty to bring to bear upon the written evidence to be construed the general information necessary to interpret the statute or decision, but in no event to consult statute or decision not offered in evidence to prove or to disprove a statute or decision so- offered in evidence.

The reliance to prove the quoted allegation in the complaint is the decision of the Supreme Court of Tennessee in Guthrie v. Railroad, 11 Lea, 372, 47 Am. Rep. 286. The averment must be proven, not left to possible, or even probable, inference, merely. There can be no such thing as a decision tending to prove an averred state of the law, in a given particular, in another state. The law is or is not, for purposes of proof by decision or statute in a foreign state. That another court of last resort has laid down in decision a legal premise from which it may be, or even, as matter of logic and legal consequence, should in our opinion be, concluded that a given rule is the law in that state, cannot of necessity suffice, generally speaking to prove an averred state of the law there. It is so, because to attain the averred result an additional process and conclusion of the judicial mind must be supplied in order to arrive at the point where it can be said with requisite certainty that the state of the law, in the foreign state, on the subject is as averred. There may be cases where the conelusion, consistent with the averment, may be held to result irrefragably from the premise founded by decision already rendered; but, in the ordinary cases, the general rule must be as indicated. That a court is headed, as read from its decisions, toward a given and averred establishment of the law, on a particular subject or right, is obviously a very different matter from the status made by the decision to that effect. If these observations be not sound, the consequence, ordinarily, must be that courts, properly dealing alone with the evidence (decision) offered, become not only suppliers of evidence, but also impute to the courts of the state, whose law is the issue, a conclusion, a deduction, not shown to have been uttered and approved by them.

Guthrie v. Railroad, supra, might well be read as authority, to our brothers of Tennessee, for that court to hold that the duties averred in the complaint are nondelegable, and, it might he added, so read here were the question open with us. But authority and evidence are distinct conceits.

It is true Guthrie’s Case declared the master’s here pertinent duty to the servant in broad terms — such terms as import an active, continuing, obligation toward the servant in respect of repair of the instrumentalities of his service to the master. And it may be well argued, as it is most ably here, from the premise indicated, that no such declaration of duty could or does consist with the delegability — not mere assignability of its performance — of the duty involved. But, while these concessions are unquestionably due appellee’s counsel, it yet remains that in Guthrie’s Case the Tennessee court did not therein hold that the duty involved was nondelegable. It may be that in Guthrie’s Case the court grounded the declaration of liability of the master upon considerations apart from the theory of nondelegability of the duty treated therein. That court did not particularize in respect to that great phase of the law of master and servant. Looking at its decision as evidence, the writer cannot assume the necessary fact in order to render Guthrie’s Case proof of the allegation quoted from the complaint.