Aldrich v. Tyler Grocery Co., 6 Div. 416

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J.
• Citation: 89 So. 289,206 Ala. 138
• Parties: ALDRICH v. TYLER GROCERY CO. et al.
• Docket Number: 6 Div. 416
• Decision Date: 19 May 1921

89 So. 289

206 Ala. 138

ALDRICH
v.
TYLER GROCERY CO. et al.

6 Div. 416

Supreme Court of Alabama

May 19, 1921

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.

McCLELLAN, J.

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...