It is insisted by counsel for appellant that count 12 discloses a relation of employer and employé, and was subject to demurrer. Plaintiff does not in said count declare that he stood in the relation of an employé of the defendant, but the averments disclose that he stood in the relation of invitee upon the company's premises, as a contractor, and to whom the defendant owed the duty of ordinary care and prudence as to his safety. We are of the opinion the count stated a good cause of action, and was not subject to the demurrer interposed. Republic Iron Steel Co. v. Luster, 192 Ala. 501, 68 So. 358; Sloss-S. S. I. Co. v. Stewart, 172 Ala. 516, 55 So. 211; Hubbard v. Coffin Lusk, 191 Ala. 494, 67 So. 697; Merriweather v. Sayre Mining Mfg. Co., 161 Ala. 441,49 So. 916; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 So. 988; Harris v. McNamara Bros., 97 Ala. 181, 12 So. 103.
The evidence for the plaintiff tended to show that he was at work in the mines of the defendant, under a contract with it, receiving so much per ton for shooting and loading coal after the company had mined it; he (plaintiff) furnishing the labor, powder, fuses, and tools, and the company furnishing the timber, cars, and rails. The evidence of the defendant's "bank boss" also tended to show that the plaintiff was not an employé, but was a contractor, having full charge and control of the men whom he worked, and entirely responsible therefor. Plaintiff states that when he first began to work at the mine he was assigned to what is known as No. 3, first right entry, close to the main entry of the mine, and afterwards also assumed charge of room No. 2.
Speaking of the plaintiff's work and employment of his men, and control of these entries or rooms, the "bank boss" testified:
"I said Mr. Faught employed the men to work in those rooms he had a contract in; he had a right to employ them and discharge them. He is the man that had control of the work they did; and he was responsible for the place, he had full charge of those places."
In view of the evidence therefore, and in the light of the foregoing authorities, there was no error in the refusal of the affirmative charge as to count 12, upon the ground that there was no testimony to sustain the relation as therein set forth.
Nor do we find reversible error in that portion of the oral charge to which exception was reserved, and which appears in the statement of the case. The oral charge of the court confined the finding of the jury to the evidence in the case, and the amount of damages to such as they would deem "a reasonable compensation" for the injuries sustained. There is nothing in the charge of the court to indicate any recovery for punitive damages; in fact, the court at the request of the defendant gave to the jury an instruction as against assessing any damages as a punishment to the defendant.
We see nothing in the cases of Seaboard Mfg. Co. v. Woodson,98 Ala. 378, 11 So. 733, and Ala. Northern R. R. Co. v. Methvin, 9 Ala. App. 519, 64 So. 175, cited by appellant's counsel, which, in our opinion, at all militates against this conclusion.
The foregoing are the only questions presented in briefs of counsel for consideration upon this appeal; and, finding in them no reversible error, the judgment of the court below will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.