118 So. 262 (Ala. 1928), 8 Div. 48, Peck v. Henderson

Docket Nº:8 Div. 48
Citation:118 So. 262, 218 Ala. 233
Opinion Judge:THOMAS, J.
Attorney:C.L. Peck and Tennis Tidwell, both of Decatur, for appellant. W.W. Callahan, of Decatur, for appellee.
Judge Panel:Brown, J., and Anderson, C.J., dissenting. SAYRE, GARDNER, BOULDIN, and FOSTER, JJ., concur. BROWN, J. (dissenting). ANDERSON, C.J., concurs in the foregoing dissent.
Case Date:October 04, 1928
Court:Supreme Court of Alabama

Page 262

118 So. 262 (Ala. 1928)

218 Ala. 233




8 Div. 48

Supreme Court of Alabama

October 4, 1928

Rehearing Denied Oct. 25, 1928

Certiorari to Court of Appeals.

Action by J.S. Henderson against Cicero F. Peck for malpractice. Judgment for plaintiff was affirmed by the Court of Appeals (118 So. 258), and defendant applies for certiorari. Writ denied.

Brown, J., and Anderson, C.J., dissenting.

C.L. Peck and Tennis Tidwell, both of Decatur, for appellant.

W.W. Callahan, of Decatur, for appellee.


Count 3 declared for the wrongful death of plaintiff's said minor son, and contained the averment of facts that showed a duty, or relationship from which was imposed the duty, upon the defendant as to plaintiff's minor son, and, it is averred, that the breach of such duty resulted in the proximate injury and damage for which the suit is brought. Wright v. McCord, 205 Ala. 122, 125, 88 So. 150; A.G.S.R. Co. v. Ensley Co., 211 Ala. 298, 100 So. 342.

The count was not open to demurrer for duplicity, condemned by the rule of good pleading, having for its purpose the prevention of prolixity and confusion in the introduction of proof and the decision of the properly presented and litigable issues. Will's Gould on Pleading (6th Ed.) p. 401 et seq.; Richardson v. Vaughn, 208 Ala. 442, 94 So. 514.

The first count limited its averments, among other things, to the negligent or unskillful conduct of defendant in his attempt to remove the cotton seed from the ear of the plaintiff's minor son, causing the injury averred and that proximately resulted in his

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death. Count 3 was broader in its averments of the facts declared upon as malpractice in the premises. It was that defendant "undertook to remove a cotton seed from the ear of plaintiff's minor son," and to "treat and care for said ear after the removal of said cotton seed;" that this professional duty was negligently and unskillfully done or omitted, and as a proximate consequence of such "negligent or unskillful conduct in that regard" the child lost its life.

Are the averments of count 3, for malpractice, for "an action for malpractice is essentially for a tort and ex delicto" ( Sellers v. Noah, 209 Ala. 103, 95 So. 167; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann.Cas.1912D, 863; White v. Levy, 91 Ala. 175, 80 So. 563; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Blythe v. Enslen, 203 Ala. 692, 85 So. 1; Knowles v. Blue, 209 Ala. 27, 95 So. 481; Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312), such as to present an inconsistency in that pleading?

Distinct causes of action may be joined in one complaint, but not in one count. The alternative averments employed in a count must be consistent. Worthington v. Davis, 208 Ala. 600, 94 So. 806. The authorities in this jurisdiction and at common law are collected in L. & N.R.R. Co. v. Abernathy, 197 Ala. 512, 515...

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