Autry v. Roebuck Park Baptist Church

• Decision Date: 11 December 1969
• Docket Number: 6 Div. 554
• Citation: 285 Ala. 76,229 So.2d 469
• Parties: Annie Laurie AUTRY v. ROEBUCK PARK BAPTIST CHURCH.
• Court: Alabama Supreme Court

Page 469

229 So.2d 469

285 Ala. 76

Annie Laurie AUTRY v. ROEBUCK PARK BAPTIST CHURCH.

6 Div. 554.

Supreme Court of Alabama.

Dec. 11, 1969.

George C. Longshore and Cooper, Mitch & Crawford, Birmingham, for appellant.

Rives, Peterson, Pettus & Conway, Birmingham, for appellee.

HARWOOD, Justice.

In the proceedings below the appellant was plaintiff in an action seeking damages resulting from a fall in a hallway in the premises of the defendant, Roebuck Park Baptist Church.

The complaint was in one count and reads as follows:

'Comes now the Plaintiff, Annie Laurie Autry, and claims of the Defendants the sum of THIRTY-FIVE THOUSAND DOLLARS ($35,000.00), damages for that heretofore on, to-wit, March 8, 1965, the Defendants owned or maintained a church located at 216 Roebuck Drive, Jefferson County, Alabama, and the Plaintiff avers that on said date she entered the said premises maintained by the Defendants for the purpose of attending a Women's Missionary Union prayer meeting in the course of her membership in said church and while walking along a hallway located in the basement which hall was maintained or controlled by the Defendants for the use of those attending church meetings or services, the plaintiff slipped and fell and as a proximate consequence thereof she was injured and damaged as follows:

'Her left knee was fractured or broken, her nervious system was shocked, she was placed in great physical agony and mental pain, she was permanently injured, she was caused to undergo surgery and hospitalization and incur large bills and expenses for the treatment of her injuries.

'And the plaintiff avers that her injuries were the proximate consequence of the negligent maintenance of said floor in an unsafe condition for those using said floor at the place where the Plaintiff slipped and fell.'

The defendant filed a demurrer to the complaint containing some 29 grounds. The court below sustained the demurrer to the complaint. The plaintiff thereupon moved for a nonsuit with leave to appeal. The motion was granted and the suit was dismissed.

Since the plaintiff below is the appellant here and occupies the same position here as in the court below, the appellant will be designated herein as plaintiff.

In brief counsel for plaintiff assert that:

'The plaintiff views the defendant's demurrer as raising principally two issues: (1) whether a church enjoys immunity from the consequences of its negligence by reason of its status as a 'charitable' institution, and (2) whether a member of a church enjoys the status of an invitee while on the premises. Other grounds of the demurrer assert that the complaint is procedurally defective.'

Counsel for appellant has first argued that a church enjoys no immunity from libility for negligence because of its charitable status--that is, that the doctrines of charitable immunity should not be applied in such a situation.

Counsel for appellant has presented in brief an excellent and scholarly discussion of the doctrine of charitable immunity, has dissected the bases on which the doctrine rests, and the alleged speciousness on which these bases rest. Counsel for appellant assert that the trend of today's decisions is to repudiate the doctrines of charitable immunity because of changed conditions in the businesslike operations of what were theretofore small charitable institutions, but are no longer. The brief indicates considerable research on the writer's part.

Counsel for appellee have answered this portion of appellant's brief with an argument and discussion of equal competence.

However, as pointed out by counsel for appellee, there are among the 29 grounds of the demurrer several which are unrelated to the doctrine of charitable immunity and which counsel contends fully support the court's action in sustaining the demurrer to the complaint. If this be so, then no need arises to consider the question of whether the defendant church should, or should not, be accorded immunity from liability under the charitable immunity doctrine.

Appellant's single assignment of error is to the effect that the court erred in sustaining the demurrer, as amended, to the complaint.

If any ground of a demurrer is well taken, the action of the trial court in sustaining the demurrer must be upheld. Butler v. Olshan, 280 Ala. 181, 191 So.2d 7; Prather v. Ray, 258 Ala. 106, 61 So.2d 46; Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 150 So.2d 365.

Grounds 7, 8, and 9, of the demurrer are addressed to the insufficiency of the complaint to charge negligence, or breach of duty. These grounds read:

'7. For that the quo modo of this defendant's alleged negligence as set forth in said count and the facts therein averred are insufficient to constitute negligence as a matter of law.

'8. For that the said count shows no breach of duty or negligence on the part of this defendant.

'9. For that the allegation in said count that the plaintiff 'while walking along a hallway located in the basement which hall was maintained or controlled by the defendants for the use of those attending church meetings or services, the plaintiff slipped and fell' is insufficient to charge this defendant with any wrongful conduct.'

In Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674, the manner and requirements for averring negligence in a complaint are discussed in extenso, and numerous authorities were cited. We see no need to again discuss these authorities in detail other than to call attention to the defects in the present complaint.

In Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443, the complaint alleged that the plaintiff, after visiting her husband who was a patient in the hospital, while descending a stairway in said hospital which '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, * * *'

Demurrers to this complaint were overruled. In holding this action by the lower court erroneous, this court wrote:

'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. Barret (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.' (Citations omitted.)

In Alabama Baptist Hospital Board, supra, the complaint at least alleged that the stairway was not sufficiently lighted to render its use reasonably safe.

In the present case the complaint merely avers that the plaintiff entered the premises of the church to attend a prayer meeting conducted by the Women's Missionary Union of which she was a member,

'and while walking along a hallway located in the basement which hall was maintained or controlled by the defendants for the use of those attending church meetings or services, the plaintiff slipped and fell and as a proximate consequence thereof she was injured and damaged as follows * * *' (Here injuries catalogued.)

'And the plaintiff avers that her injuries were the proximate consequence of the negligent maintenance of said floor in an unsafe condition for those using said floor at the place where the plaintiff slipped and fell.'

Certainly there is nothing in the forepart of the complaint showing or suggesting negligence, or setting forth facts showing negligence as a matter of law. The concluding paragraph of the count that the injuries were the proximate consequence of the negligent maintenance of the floor in an unsafe condition must be taken to mean that the facts already alleged in the forepart of the count constituted the conduct of the defendant and as a result of such action of the defendant as set forth in the forepart of the count, the plaintiff suffered her injuries. The concluding paragraph averring such conduct to be negligent, when no such averment of negligence characterized the conduct of the defendant as it was originally set forth, cannot be deemed to change non-negligent conduct into negligent conduct. Birmingham Railway Light and Power Co. v. Weathers, 164 Ala. 23, 51 So. 303; Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897; Alabama Power Co. v. King, supra.

However, counsel for plaintiff contends that the complaint in the present case is without the influence of Alabama Power Co. v. King, supra, and the cases reviewed therein, for the reason that the complaint shows that the plaintiff was on the defendant's premises as an invitee and therefore as a matter of law the defendant owed the plaintiff a duty to keep the premises reasonably safe and it was unnecessary to describe the acts of ...