Alabama Fuel & Iron Co. v. Bush

• Decision Date: 21 October 1920
• Docket Number: 6 Div. 112
• Citation: 204 Ala. 658,86 So. 541
• Parties: ALABAMA FUEL & IRON CO. v. BUSH.
• Court: Alabama Supreme Court

86 So. 541

204 Ala. 658

ALABAMA FUEL & IRON CO. v. BUSH.

6 Div. 112

Supreme Court of Alabama

October 21, 1920

Rehearing Denied Nov. 18, 1920

Appeal from Circuit Court, Jefferson County; D.A. Green, Judge.

Action by Pearl Bush, pro ami, against the Alabama Fuel & Iron Company, for damages for personal injuries. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

Percy Benners & Burr, of Birmingham, for appellant.

W.T Stewart and W.K. Terry, both of Birmingham, for appellee.

THOMAS J.

The action was for personal injury under count 1, as amended, and count 3. Demurrers to said counts being overruled, defendant filed a plea of general issue in short by consent, with leave to plaintiff to reply. B.R.L. & P. Co. v. Littleton, 201 Ala. 141, 143, 77 So. 565. The reporter will set out said counts.

Cardinal rules of pleading are that the matter pleaded or facts alleged must be (1) sufficient in law to avail the party who pleads it, and (2) alleged or deduced according to the forms of law. Will's Gould on Pleading, pp. 2, 3, 192, 361. A cause of action is made up of a duty and its breach. The duty--the relationship from which the duty springs--must be shown by the facts alleged; and the breach of the duty may be averred by way of a conclusion. B.R.L. & P. Co. v. Littleton, supra; B.R.L. & P. Co. v. Cockrum, 179 Ala. 372, 376, 381, 60 So. 304; Johnson v. B.R.L. & P. Co. 149 Ala. 529, 43 So. 33; Long v. Addix, 184 Ala. 236, 63 So. 982; T.C.I. & R. Co. v. Moore, 194 Ala. 134, 69 So. 540; T.C.I. & R. Co. v. Smith, 171 Ala. 251, 255, 55 So. 170; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Sou. Ry. Co. v. Williams, 143 Ala. 212, 217, 38 So. 1013.

The substantive law of torts in this state would subject a defendant to liability if by his simple negligence he injures anyone (except a trespasser on the defendant's land) when on a public highway, or on the defendant's land rightfully, for example, by permission of the defendant, or on the land of a third person whether rightfully or wrongfully. Therefore, if a plaintiff alleges, either that he was not a trespasser on the defendant's land, or that he had a right to be where he was, when injured, he has stated enough to show a duty owed to him by the defendant to use due care not to injure him. It is true the allegation that the plaintiff was not a trespasser or that he had a right to be where he was at the time of his injury states a conclusion of law objectionable on the ground of indefiniteness or as being a conclusion. Such defect is merely of form, and cannot be taken advantage of by a demurrer in which this ground of objection is not specifically stated.

It may be of interest to illustrate the foregoing rules by some of the recent applications thereof made by this court. In American Bolt Co. v. Fennell, 158 Ala. 484, 48 So. 97, the place of the injury is averred to have been on the public sidewalk of Birmingham. The law implied a duty on the part of the defendant to the public, on the street or sidewalk or approaching to cross the same at such point. In Sheffield Co. v. Morton, 161 Ala. 153, 163, 49 So. 772, it was said:

"Count 5 alleges that plaintiff's intestate had a right to go where he was when he received his injury. This allegation is general, but is sufficient to raise a duty on the part of the defendant to care for his safety in the maintenance of dangerous wires in the place where he was," that the place is alleged to have been within the city of Tuscumbia, "at a public place, near the western boundary of said city *** near the edge of a bluff within easy reach of pedestrians going on or near the bluff," and that "plaintiff's intestate was on the bluff, where he had a right to go," when he came in contact with said wire and received his injury.

In B.R.L. & P. Co. v. Cockrum, supra, the action was against an electric light company for injuries caused by a shock; and the complaint alleged that the place of the injury was "in the city of Birmingham, between Alley B of said city and that German-Lutheran Church which is on the southeast corner of Avenue B and Nineteenth Street South, in said city, at a place where she (plaintiff) had a right to be, and was not a trespasser." Held, that the count stated a cause of action for simple negligence, since the facts averred showed that plaintiff was not at the time of the injury on the property of the defendant, notwithstanding it contained an allegation, objectionable as a conclusion, that she was not a trespasser and was at a place where she had a right to be.

The locus in quo of an injury may be, according to the circumstances alleged, a part of the averment of facts showing the defendant's duty to plaintiff not to injure or permit his injury. If so, the facts averred must show that duty. It will be noted of the averment of the locus in quo of the injury in B.R.L. & P. Co. v. Cockrum, supra, that it occurred on the public street in the city indicated, or on the designated church lot. In that case the further conclusion of the pleader, that plaintiff was at a place "where she had a right to be and was not a trespasser," added nothing to the averred facts showing that the injury did not occur on defendant's property to a trespasser, but at a place between Alley B in that city and the said church lot or on the lot of the German-Lutheran Church. If at the latter place, plaintiff was rightfully on the church lot, so far as concerned the defendant.

The locus in quo averred in count 3 was that plaintiff was injured by defendant's "team" running away and striking her "on or near said public highway, where she had a right to be." The public highway theretofore described in the count was that which was "customarily in use by the public in passing through property of defendant by permission of defendant." Testing this pleading by its weakest averment (Nat. Park Bank v. L. & N.R.R., 199 Ala. 192, 74 So. 69) when injured the plaintiff was "near said public highway, where she had a right to be," though not on said highway. For the assigned reason, reversible error was not committed in the failure to sustain demurrer to count 3: "For aught that appears, plaintiff was a trespasser on the premises of defendant." This ground of demurrer is not sufficient to challenge the count for its insufficiency, that it is too general and indefinite in that it states the conclusion of the pleader as to the right of the plaintiff to be where she was at the time of the injury "near said public highway." The latter phrase "where she had a right to be," by fair intendment stated that she had a right to be where she was when stricken and injured by defendant's team. It is too narrow a construction to say that the count alleged merely that she had a right to be on the highway. If at the time of her injury she was where she had a right to be, whether on or near the highway, she was not a trespasser on defendant's land, and the latter owed her a duty of due care. The fault in the count is that the place of the injury was averred by conclusion, and the demurrer was not rested on this ground. There was no ground challenging the sufficiency of count 3 in respect to the allegation of defendant's duty in the premises.

A question presented upon the first count is whether a trespasser may recover for an injury received or sustained at a place upon the property of the defendant, the proximate result of the simple negligence of the defendant committed or permitted on the public highway adjoining defendant's property. It being admitted that a property owner owes no duty to a trespasser (except the duty not to willfully or wantonly injure him, nor by subsequent negligence injure him; not to set traps or pitfalls to injure him, or to construct and leave unguarded attractive nuisances to the hurt of children), does the place where the defendant is when guilty of the simple negligence proximately causing the injury, or the fact that the defendant owes a duty to other people who may be on the street where he is at the time of said act of negligence, add anything to the duty owing to the trespasser on defendant's property when receiving his injury? As to such defendant, the plaintiff is none the less a trespasser because the defendant is not at home, or is in the street, or if defendant is a trespasser upon the premises of a third person at the time of his act of simple negligence resulting in the injury of which complaint is made. Sou. Ry. Co. v. Williams, 143 Ala. 212, 217, 38 So. 1013; Grissom v. A. & B.A.L. Ry., 152 Ala. 110, 112, 44 So. 661, 13 L.R.A. (N.S.) 561, 126 Am.St.Rep. 20; B.R.L. & P. Co. v. Jones, 153 Ala. 157, 166, resSouth. 177; S.S.S. & I. Co. v. Bibb, 164 Ala. 62, 67, 51 So. 345; Sou. Ry. Co. v. Crawford, 164 Ala. 178, 183, 51 So. 340; Sou. Ry. Co. v. Drake, 166 Ala. 540, 545, 51 So. 996; West. Ry. of Ala. v. Wallace, 170 Ala. 584, 588, 54 So. 533; T.C.I. & R. Co. v. Smith, 171 Ala. 251, 255, 55 So. 170; B.B. Ry. Co. v. Drake, 1 Ala.App. 354, 357, 56 So. 53; 2 Mod.Am.Law, § 35, p. 141; 4. Mod.Am.Law, § 107, p. 263. For the effect of violation of a statute, see cases collected in Ill. Cent. R. Co. v. Camp, 201 Ala. 4, 75 So. 290; notes, L.R.A.1915E, 502, 535; 2 A.L.R. 159.

The reason on which the measure of duty rests may be illustrated as follows: If, being a trespasser upon my neighbor's yard, I throw a log into his fence knocking it into my yard I have wronged my neighbor by an injury to his property. Have I wronged the trespasser in my yard upon whom the fence fell and injured? If I knew the trespasser was in my yard, or knew of facts amounting to notice of his presence, and...