Alabama Power Co. v. Edwards

• Decision Date: 04 April 1929
• Docket Number: 8 Div. 66.
• Parties: ALABAMA POWER CO. v. EDWARDS.
• Court: Alabama Supreme Court

121 So. 543

219 Ala. 162

ALABAMA POWER CO. v. EDWARDS.

8 Div. 66.

Supreme Court of Alabama

April 4, 1929

Appeal from Circuit Court, Lauderdale County; R. L. Blanton, Judge.

Action for damages for personal injuries by Mary Lee Edwards against the Alabama Power Company. From a judgment for plaintiff defendant appeals. Affirmed.

Bradshaw & Barnett, of Florence, and Martin, Thompson, Turner &amp McWhorter, of Birmingham, for appellant.

Simpson & Simpson and L. A. May, all of Florence, for appellee.

SAYRE J.

Plaintiff (appellee) sued the power company for damages alleged to have been sustained by reason of the negligence of defendant while she was riding in one of its street cars as a passenger.

Each and every the amended counts of the complaint charge the injury complained of to the negligence of the defendant or its agents or employees acting in the line and scope of their authority. The criticism of this allegation is that it "was confused and not a clean-cut charge against the servants or agents, but was also coupled with a charge against the defendant itself." The criticism, we apprehend, is too refined for practical purposes. The counts fairly construed, intend to charge plaintiff's injury to defendant by and through the negligence of its agent or employees operating the car at the time. The counts sufficiently state plaintiff's cause of action to enable defendant to prepare its defense, and, in case of a second suit, to plead a judgment thereon in bar of another recovery. Chapman v. Weaver, 19 Ala. 626; Kennedy v. McDiarmid, 157 Ala. 496, 47 So. 792, cited by defendant, presented a very different question. The other cases cited to this point, so far as relevant, do no more than assert the proposition that pleadings must be certain to a common intent. As for this objection, the demurrer was properly overruled. So, for that matter, of the other objections to the several counts. Against count 3, alleging several grounds of recovery in the alternative, it seems to be urged that same of the alternatives are bad for the reason that the negligence complained or must have occurred at times different from the time of the accident causing plaintiff's injury, as, for example, negligence "in the preparation of the switch," or "in failing to keep the said tracks in a proper state of repair." We think it a sufficient answer to this criticism of the count to say that plaintiff was complaining of the results of the negligence alleged, and for such results defendant was liable at whatever time the negligence causing them may have occurred. Nor was it a tenable ground of objection that the count charged negligence in the alternative; each alternative sufficiently charging a good cause of action and based upon the same injury.

Appellant's (defendant's) brief argues that defendant was due the general charge requested by it on the theory that negligence was charged against it as a legal entity and there was no proof to sustain it. The point is not well taken. Defendant was a corporation, as we infer. It could only act in the respect complained of by and through agents, and we have construed the complaint to charge negligence to defendant. There was evidence tending to sustain the charge.

Charges 12, 14, 16, 18, and 21 were refused on the ground, it seems, that they were misleading. We pronounce no opinion as to that, for the reason that the measure of proof as to the allegation of negligence and the necessity for the establishment of causal connection between the negligence alleged, if proved, and the injury from which plaintiff suffered were correctly and, as we think, adequately stated to the jury in the court's oral charge and in special charge 20 given on defendant's request.

There was evidence which would have justified a finding that plaintiff by reason of an injury suffered while a passenger on defendant's car had became liable to her physician for services rendered and the reasonable value of those services. This state of the evidence, or proof, if the evidence was accepted as such, would have authorized the assessment of damages on that account-this notwithstanding such services had neither been paid for nor "charged." The allegation of some of the counts is that plaintiff had incurred expense for medical and hospital services. There is no different allegation in the complaint. This must be taken to mean no more than that plaintiff had been made liable for such bills. Charges A and B were therefore refused without error-the first because it related to an issue not raised in the cause by pleading or evidence; the second because it sought to eliminate items of recovery as to which the evidence did warrant a recovery in agreement with the allegations of the complaint. We find nothing to the contrary in Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633.

Assignment of error 21 proceeds upon the assumption that the court overruled defendant's objection to the following question put to the plaintiff by her attorney: "The motorman of the car, the man operating the car, is that the statement he made?" The record shows no objection to the question. There was no objection "to the above testimony." A fair construction of the record at this point-fair to the trial judge-requires us to hold that the objection was to the testimony after it had been elicited, and that any tenable objection to it had been waived by defendant's failure to object to the question which fully disclosed the nature of the testimony sought to be thereby elicited; and so of the ruling made the subject of assignment 33.

The court erred at first in overruling defendant's objection to plaintiff's question to her witness Mrs. Hammond concerning a statement made by defendant's motorman after the accident (Alabama G. S. R. Co. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403; Southern Ry. v. Fricks, 196 Ala. 65, 71 So. 701), but this error was cured by the subsequent ruling which excluded the objectionable testimony. There can be no reversal on that account.

We are unable, with any satisfactory assurance of being able to rule as the facts of the case would require, to affirm error in the action of the court on defendant's objection to the argument of plaintiff's counsel to the jury. If the court's statement as to the facts on consideration of which defendant's objection was overruled be accepted, as of course it is, there was no error, the objectionable evidence, according to the statement, having been brought back...