Alabama Baptist Hospital Board v. Carter

• Citation: 226 Ala. 109,145 So. 443
• Decision Date: 01 December 1932
• Docket Number: 2 Div. 998.
• Parties: ALABAMA BAPTIST HOSPITAL BOARD v. CARTER.
• Court: Supreme Court of Alabama

145 So. 443

226 Ala. 109

ALABAMA BAPTIST HOSPITAL BOARD v. CARTER.

2 Div. 998.

Supreme Court of Alabama

December 1, 1932

Rehearing Denied Jan. 27, 1933.

Appeal from Circuit Court, Dallas County; Thos. E. Knight, Judge.

Action for damages for personal injuries by Mrs. Roy Carter against the Alabama Baptist Hospital Board. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Harry W. Gamble, of Selma, and Rushton, Crenshaw & Rushton, of Montgomery, for appellant.

S. F Hobbs, of Selma, for appellee.

THOMAS and FOSTER, JJ., dissenting in part.

BROWN J.

This is an action on the case by the appellee against appellant for damages for personal injuries resulting to the plaintiff from falling while walking down the stairway in defendant's hospital.

The case was tried on count A and the defendant's plea of the general issue, pleaded in short by consent to give in evidence any matters of defense as if specially pleaded.

By appropriate grounds of demurrer, the defendant questioned the sufficiency of count A in two respects, and the overruling of these demurrers constitutes the basis of some of the assignments of error.

The count does not aver in terms that the plaintiff was on the premises of the defendant as an invitee of the defendant, nor that the insufficient lighting of the stairway was in consequence of defendant's negligence, but avers "That on said date plaintiff's husband was a pay patient in said hospital and with full knowledge and implied consent of defendant, or of its agents or employees, while acting within the line and scope of their said agency or employment, the members of the family of any patient in said hospital at any time within the 'visiting hours' posted in said hospital, had been allowed to visit such patient, and to use the certain stairway in said hospital building in so doing, one of which stairways was that being used on the occasion of plaintiff's injuries hereinafter described, and were so allowed on said date; that on said date, within said 'visiting hours,' at about six o'clock in the afternoon, plaintiff was returning to her home after having just visited her said husband, in the room in said hospital which he was then and there occupying as a patient, and that as plaintiff was descending the stairs provided for the use of persons going to the second floor from the first floor, or descending from the second floor to the first floor of said hospital building, said stairway was not sufficiently lighted to render such use by persons reasonably safe at that hour, and that as a proximate consequence of the negligence of defendant in failing to have said stairway sufficiently lighted to render such use by persons reasonably safe, plaintiff was caused to fall on the landing of said stairway, and sustained the following described personal injuries," etc. (Italics supplied.)

One of appellant's contentions is that it does not appear from these averments with certainty to a common intent, whether or not the plaintiff was a trespasser, a licensee, or an invitee of the defendant, and therefore on the face of the pleading the court cannot say that defendant owed the plaintiff the duty alleged to have been breached.

Another is, that it is not alleged that the insufficient lighting of the steps was in consequence of negligence on defendant's part; that the complaint does not allege negligence, but at most assumes negligence.

It is a well-settled rule of common-law pleading, that to state a cause of action for negligence the averments of the complaint must show that the defendant owed the plaintiff a duty, that there was a breach of such duty, and that as a proximate consequence the plaintiff was damaged. "While general averments as to the breach of the duty such as that the act or omission causing the injury was negligently done or omitted will suffice, a complaint, to withstand appropriate demurrer, must state facts upon which the law raises and defines the duty owing from the defendant to the plaintiff, and to this end the facts stated must either relieve the plaintiff of the imputation that he was a wrongdoer, or show that the injury was the result of negligence occurring after the discovery of peril." Stewart v. Smith, 16 Ala. App. 461, 463, 78 So. 724 726; Walker v. Alabama, Tennessee & Northern Railway Co., 194 Ala. 360, 70 So. 125, 126; Gadsden &amp Attalla Union Railway Co. v. Julian, Adm'r, 133 Ala. 371, 32 So. 135; Birmingham Ry., L. & P. Co. v. Adams, 146 Ala. 270, 40 So. 385, 119 Am. St. Rep. 27.

Another well-settled rule of pleading is that in considering the sufficiency of the averments on demurrer, the court must assume that the pleader has stated his cause as favorably as the case will justify, and its averments will not be aided by implications or intendments, but these will be resolved against him. Walker v. Alabama, Tennessee & Northern Railway Co., 194 Ala. 360, 70 So. 125; Nashville, C. & St. L. Ry. v. Blackwell, 201 Ala. 657, 70 So. 129. To state the rule in different language, but to the same effect, "Pleadings are, on demurrer, to be construed most strongly against the pleader, and must negative every reasonable adverse intendment." Treating the averments as true, yet if a case may be supposed consistent with them, which would render the averment insufficient, such case will be presumed or intended, unless excluded by particular averments. Williams v. Tyler, 14 Ala. App. 606, 71 So. 51; Scharfenburg v. Town of New Decatur, 155 Ala. 654, 47 So. 95; Stewart v. Smith, supra.

Another rule of pleading, well established, is, "when a complaint for personal injuries specifies particular acts or omissions of the defendant as constituting the negligence upon which the action is founded, the complaint is insufficient on apt demurrer, unless such acts in themselves show or suggest negligence, and a general averment of negligence does not cure the defective specification." Birmingham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 279, 60 So. 262, 263.

And if the alleged acts in themselves do not constitute negligence as a matter of law, but are merely sufficient to suggest and to support an inference of negligence, the complaint must characterize the acts as negligence, and it is not enough that negligence be merely assumed. Birmingham Railway, Light & Power Co. v. Weathers, 164 Ala. 23, 51 So. 303; Birmingham Railway, L. & Power Co. v. Parker, 156 Ala. 251, 47 So. 138; Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Garing v. Boynton et al.,

224 Ala. 22, 138 So. 279.

Applying these well-settled rules to count A, it is apparent that some of the grounds of demurrer were well taken.

It is permissible to aver that plaintiff is a passenger, guest, or invitee, as the case may be, in connection with the facts and res gestæ of the injury; but when the relation of the plaintiff is not so alleged, the facts pleaded must be sufficient to establish the relation with certainty to a common intent. If the count averred that plaintiff, on the occasion of her injury, visited her husband to cheer, comfort, aid, or assist in administering to him, this, in connection with the other averments, would show with the requisite certainty that plaintiff was an invitee of the defendant, and in this relation its duty was to use reasonable care to have the premises in a reasonably safe condition for the uses contemplated by the invitation, and to warn the invitee of known dangers and dangers discernible by reasonable care. Farmers' & Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406; Mudd et al. v. Gray, 200 Ala. 92, 75 So. 468; Brigman v. Fiske-Carter Construction Co., 192 N.C. 791, 136 S.E. 125, 49 A. L. R. 773, annotation pages 778-800.

For aught appearing on the face of the count, plaintiff's mission at the hospital was not one of benevolence, but one of mischief; the averments do not exclude the intendment that the husband was in the hospital as the result of her wrongful and willful conduct; and that she was there of annoyance or other selfish purpose that...