Aldrich v. Tyler Grocery Co.

Decision Date19 May 1921
Docket Number6 Div. 416
Citation89 So. 289,206 Ala. 138
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

Action by A.L. Aldrich, as administrator of the estate of Minnie Aldrich, against the Tyler Grocery Company and J.K. Shook for damages for the death of plaintiff's intestate. After demurrer for misjoinder of defendants was sustained defendant Shook was eliminated by an amended complaint. Judgment for remaining defendant, and plaintiff appeals. Reversed and remanded.

Burgin & Jenkins, of Birmingham, for appellant.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellee.


This action for damages, stated in count 1, for the death of Mrs. Aldrich, was instituted by appellant, administrator, against Tyler Grocery Company and J.K. Shook, the grocery company's "city salesman." Mrs. Aldrich was killed in a public street in Birmingham by her collision with an automobile driven by Shook. Omitting presently immaterial language, this count reads:

"The plaintiff *** claims of the defendants, J.K. Shook and Tyler Grocery Company, a corporation, *** damages for that, heretofore, on, to wit, February 2, 1920, while plaintiff's intestate, Minnie Aldrich, was a pedestrian on a public highway in the city of Birmingham, Jefferson county, Ala., to wit, on Twenty-Fourth street between Tenth and Eleventh avenues north, the defendant J.K. Shook, who was then and there a servant, agent, or employee of the defendant Tyler Grocery Company, a corporation, did then and there, while acting within the line and scope of his employment by the said Tyler Grocery Company, a corporation, negligently run an automobile upon or against plaintiff's said intestate, whereby and as a proximate consequence of which said negligence of the said J.K. Shook, while acting in the line and scope of his employment by the defendant Tyler Grocery Company, plaintiff's said intestate was so injured that she died on, to wit, February 3, 1920."

The court sustained demurrer (interposed by both defendants) to this count because of the asserted misjoinder, in a single count, of an action of trespass against Shook, with case against the other defendant, Tyler Grocery Company, to which incorporation Shook bore the allegation is, the relation of servant to it as master. This was error. The allegation is that Shook "negligently ran an automobile upon or against plaintiff's said intestate." This averment does not charge the commission of a trespass by Shook against or upon the person of plaintiff's intestate. To commit a trespass, warranting an action for that cause as distinguished from the distinctive action of trespass on the case, the damnifying tort must have been "intentionally committed with force, the immediate consequence of which is injury," or the injury must have been the direct, primary, inevitable result of "gross or reckless carelessness." Bay Shore R. Co. v. Harris, 67 Ala. Mid. Ry. Co. v. Martin, 100 Ala. 511, 515, 14 So. 401; Taylor v. Smith, 104 Ala. 537, 544, 16 So. 629. Shook's act in the premises, as described in the count, does not imply or import an intention to injure plaintiff's intestate. It is not averred to have been characterized by any degree of wantonness, or even recklessness. To establish the allegation would not exact evidence of anything above a breach of duty amounting to simple negligence. The result--the impact causing injury--is averred to have proceeded from Shook's act in running the car upon or against intestate, but this result does not negative or neutralize the effect of the allegation that this act was but "negligently" done--a term inconsistent with the entertainment of an intention to do the act, as well as with the conscious presence of a wanton or reckless disregard of the probable consequences of the act. The rule requiring the construction of equivocal averments against the pleader, on hearing on demurrer, cannot be allowed to operate to amplify or to contradict the terms a pleader employs to state his cause of action. By the introduction of the term "negligently" in the phrase last quoted from the count, the pleader excluded intention and wanton or reckless disregard of consequences, in running the automobile upon or against intestate, as factors characterizing the tortious act--a measure of exclusion that operated to deprive the court (so far as the defendant Shook was concerned) of an effect to implead Shook in trespass as distinguished from case. This conclusion consists with the discriminative doctrine reproduced above.

Count C, considered in the Abernathy Case, 197 Ala. 512, 535, 73 So. 103, carried allegations expressly characterizing the tortious act as "willful, wanton, or intentional." That case is hence readily distinguishable, doctrinally, from that now under review. In the Hanby Case, 166 Ala. 641, 52 So. 334, the act was an assault and battery. "An assault and battery is not negligence. The former is intentional; the latter is unintentional." 5...

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