Addington v. American Casting Co.

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, J.
• Citation: Addington v. American Casting Co., 186 Ala. 92, 64 So. 614 (Ala. 1914)
• Decision Date: 05 February 1914
• Parties: ADDINGTON v. AMERICAN CASTING CO.

64 So. 614

186 Ala. 92

ADDINGTON v. AMERICAN CASTING CO.

Supreme Court of Alabama

February 5, 1914

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by J.L. Addington against the American Casting Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Gaston & Pettus, of Birmingham, for appellant.

Tillman Bradley & Morrow, of Birmingham, for appellee.

GARDNER J.

Appellant brought suit in the circuit court of Jefferson county against appellee, for damages, which resulted in verdict and judgment for the defendant. The appeal is on the record, no bill of exceptions appearing, and there is but one assignment of error, which is as follows: "The court below erred to the great prejudice and injury of appellant in sustaining appellee's demurrer to count 3 of complaint." This count 3 is copied in brief of counsel for appellant, together with the assignment of demurrer thereto, as follows "Plaintiff claims of the defendant $10,000 as damages for this: That heretofore, on, to wit, the 15th day of June 1910, defendant was engaged in the following business in Jefferson County, Alabama, viz., the operation of a casting plant, and used in connection therewith a certain wagon and team; and plaintiff avers that on, to wit the said date, he was lawfully in a buggy, and, while there, defendant's servant or agent, operating its wagon and team, negligently propelled the same upon or against the plaintiff's buggy, thereby inflicting upon the plaintiff the wounds and injuries and damage set out in the first count of this complaint; and plaintiff avers that his said wounds and injuries and damage were caused by reason of the negligence of the defendant in selecting, as a driver of said wagon and team, a careless, incompetent, and unfit servant. The demurrers interposed were as follows: (1) For that the averment of said count is vague, uncertain, and indefinite. (2) For that it does not appear with sufficient certainty what duty the defendant owed to the plaintiff. (3) For that it does not appear therefrom, with sufficient certainty, wherein or how the defendant violated any duty which it owed to the plaintiff. (4) It does not show that the servant or agent was acting within the line or scope of his employment. (5) It does not show that defendant violated any duty it owed plaintiff. (6) It does not show that defendant negligently selected a careless, incompetent, and unfit servant."

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