Barber Pure Milk Co. v. Holmes

• Decision Date: 03 November 1955
• Docket Number: 6 Div. 749
• Citation: 84 So.2d 345,264 Ala. 45
• Parties: BARBER PURE MILK COMPANY v. Vernice HOLMES. BARBER PURE MILK COMPANY v. Alva L. HOLMES. , 749-A.
• Court: Alabama Supreme Court

Page 345

84 So.2d 345

264 Ala. 45

BARBER PURE MILK COMPANY v. Vernice HOLMES.

BARBER PURE MILK COMPANY v. Alva L. HOLMES.

6 Div. 749, 749-A.

Supreme Court of Alabama.

Nov. 3, 1955.

Rehearing Denied Jan. 12, 1956.

J. P. Mudd and E. M. Friend, Jr., Birmingham, for appellant.

Gibson, Hewitt & Gibson, Birmingham, for appellees.

MAYFIELD, Justice.

This is an appeal from final judgments rendered in behalf of both appellees, the plaintiffs below, by the circuit court of Jefferson County. This appeal involves two actions, one for personal injuries to the plaintiff, Vernice Holmes, and the other for loss of consortium on the part of her husband, Alva L. Holmes. Both here and in the trial court, the actions were consolidated.

The accident out of which these cases arose occurred on 9 February 1952 at approximately 9:00 A.M. According to the testimony of Vernice Holmes, she had been in Greenwood's Cafe, Birmingham, shortly prior to the accident. As she left the cafe, she proceeded north on the east sidewalk along 20th Street. There is an alleyway which separates Greenwood's Cafe from the Tutwiler Hotel. As she approached this alleyway, she saw a milk truck drive into the alley which crosses the sidewalk. The truck stopped in a position partially blocking the sidewalk directly in front of Mrs. Holmes. She described the truck as being cream colored and bearing the name 'Baber Pure Milk' in red letters. As Mrs. Holmes approached the truck she stopped for a few seconds and saw a negro man get out of the cab of the truck on the side on which she was standing, and run to the rear of the truck. As Mrs. Holmes started across the alley and around the end of the truck the man who had just alighted from the cab of the truck opened the rear door in a sudden manner causing it to strike her in the head. Mrs. Holmes has no knowledge of what happened from the time she was struck by the door of the truck until she regained consciousness that afternoon in the office of Dr. J. M. Donald, who is the physician of the Barber Milk Company. She does not know how she reached the company doctor's office, located at Five Points, Birmingham. Mrs. Holmes did not know Dr. Donald and did not meet him until she regained consciousness in his office.

A few days following the accident Mrs. Holmes identified a truck on the defendant's premises as being the same or 'a similar truck' to that which caused her injury. At the trial she likewise identified photographs of one of the defendant's fleet of trucks.

No witnesses other than the plaintiff testified concerning the actual occurrences which led to Mrs. Holmes' injury. Considerable evidence was introduced by both the plaintiff and defendant regarding the extent of her injuries. The evidence of the defendant was purely negative and tended to show that none of its trucks were involved in the accident. Various of defendant's employees testified that they had no knowledge of the accident. They also testified as to the details of the defendant's routine operations which testimony tended to show that it was improbable that any of defendant's trucks would have been stopping in this particular alley at the time of the accident. Among the employees who testified was defendant's sales manager, who was notified of the accident by telephone shortly after it happened.

Mr. Arthur Greenwood gave evidence that he had no knowledge of the accident outside his place of business on the day in question. He further testified that milk trucks of dairies, other than defendant, also used this particular alley, daily. A police officer who was on duty one-half block from the place of the accident, at the corner of Fifth Avenue and 20th Street, also testified for the defendant. He stated that he knew nothing about the accident and further that when he made his investigation, approximately one week after Mrs. Holmes' injury, he was unable to find any person who witnessed the accident.

The complaint of Vernice Holmes was originally in four counts. Counts 1, 2 and 4 were withdrawn by the plaintiff and the trial was had on count 3 alone, which is as follows:

'Count Three

'Plaintiff claims of the defendant the sum of Ten Thousand ($10,000.00) Dollars, as damages, for that heretofore, on to-wit, the 9th day of February 1952, while plaintiff was a pedestrian on a public street in the City of Birmingham, Jefferson County, Alabama, at or near the intersection of 4th Alley North and 20th in said City, County and State, a servant, agent or employee of the defendant who was then and there acting within the line and scope of his employment as such servant, agent or employee of the defendant, caused or allowed a door of a motor truck of the defendant to strike plaintiff about or near the right parietal region of her head and as a proximate consequence thereof, plaintiff was injured and damaged as follows:

'Plaintiff suffered a violent blow to her head and was rendered unconscious and dazed for a long period of time, she suffered a concussion and was caused to have violent painful and recurrent headaches, her eye sight and equilibrium was impaired, her nervous system was greatly shocked and impaired, and she was caused to suffer great physical pain and mental anguish and was made sick, sore and ill for a long period of time; she was permanently injured and was caused to lose much time from her customary work and duties and was put to much trouble, annoyance, inconvenience and great loss of time in and about an effort to heal and cure her said wounds and injuries.

'Plaintiff avers that all of her said injuries and damages were caused as a proximate result of the negligence of the said servant, agent or employee of the defendant in causing or allowing the door of defendant's motor truck to strike plaintiff at said time and place.'

The appellant strenuously urges that the trial court erred in overruling its demurrer to the complaint. The first proposition advanced in support of this contention is that the general averment of negligence will not suffice in the absence of a showing of a breach of duty owed by the defendant to the plaintiff. Such is a correct statement of the law. Appellant here relies on the case of Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170, 171, where it was stated:

'If pleadings as to negligence show a duty owed by the defendant to the plaintiff, and a breach of that duty to the damage or injury of plaintiff, very general averments of negligence will suffice. As is often said, they need be but little more than conclusions; but the duty and its breach must be shown. Merely alleging that a given act was negligence or was negligently done, without more, is not sufficient. Such pleadings may allege negligence, but the trouble is it is not in such cases 'actionable negligence."

We must determine whether the present complaint alleged facts from which the law will imply duty. In this regard, we held in Dozier v. Woods, 190 Ala. 279, 67 So. 283, the following:

'Travelers upon a public highway owe a duty to others traveling upon such highway, and that duty requires them to so reasonably conduct themselves in the use of the highway as that they will not injure others who are also traveling upon such highway. [Emphasis supplied.]

'In this case each simple negligence count shows that the defendant was traveling in an automobile upon a public highway, and that the plaintiff was lawfully walking along such highway. The law therefore cast the duty on the defendant to drive his automobile in such a reasonable way as not to injure the defendant. Each simple negligence count of the complaint shows therefore that, at the time the plaintiff was injured, the defendant owed the plaintiff a duty, and, this being true, the general allegation in the counts showing that the defendant negligently performed the duty, or performed it in a negligent manner, and that the plaintiff was thereby injured, was sufficient. * * *'

The same proposition was restated in Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556, which case was cited by appellee. The complaint in the present case states that the plaintiff was a pedestrian on a public street in the City of Birmingham. As a matter of law, she had a right to be at the place where the accident occurred. We are of the opinion that the allegation is sufficient to show a duty on the part of the defendant not to negligently or wantonly injure her. So considered, the general allegation of negligence was sufficient. See, also, Smith v. Tripp, 246 Ala. 421, 20 So.2d 870, 871.

The complaint was technically defective in that it failed to allege sufficiently the relationship between the defendant or his servant and the instrumentality allegedly causing the injury. In Smith v. Tripp, supra, this court held:

'* * * when the injury or loss results from active force applied and arises under the doctrine respondeat superior, the rules of good pleading require that, the complaint by way of inducement show the instrumentality causing the injury, and that the agent or servant to whose acts negligence is ascribed had actual manual control of such instrumentality or was present directing its movement. * * *' [Emphasis supplied.]

The complaint did not contain sufficient allegations of the relation between the defendant servant and his control of the door of defendant's truck. This defect was challenged by apt demurrer and the trial court should have sustained the demurrer. See, Levans v. Louisville & N. R. Co., 228 Ala. 643, 154 So. 784; and Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228. While this omission was technically error, the complaint as a whole stated a good cause of action. It is, therefore, error without injury, since it appears without dispute from the evidence that at the time of the injury, the negro helper, alleged to be a servant, agent or employee of the defendant, and against whom the negligent act is charged, was in actual manual control of the instrumentality...