Battles v. Pierson Chevrolet, Inc.

• Decision Date: 22 February 1973
• Citation: 290 Ala. 98,274 So.2d 281
• Parties: Versie BATTLES v. PIERSON CHEVROLET, INC., et al. SC 102.
• Court: Alabama Supreme Court

Page 281

274 So.2d 281

290 Ala. 98

Versie BATTLES v. PIERSON CHEVROLET, INC., et al.

SC 102.

Supreme Court of Alabama.

Feb. 22, 1973.

Burns, Carr & Shumaker, Gadsden, for appellant

Inzer, Suttle, Inzer & Pruett, Gadsden, for appellee Pierson chevrolet, inc.

London, Yancey, Clark & Allen, Birmingham, for appellee General Motors Corp.

PER CURIAM.

This is an appeal from a judgment of nonsuit taken by the plaintiff below because of certain adverse rulings of the trial court on pleadings.

The suit was filed in the Circuit Court of Jefferson County on April 17, 1970, by Versie Battles, as mother of George Battles, deceased, against Pierson Chevrolet, Inc., a corporation, and General Motors corporation, a corporation.

Mrs. Battles sought to recover damages for the death of her twenty-two-year-old son, who died in the State of Georgia as a result of injuries which he sustained in an automobile accident which occurred on a public highway near Harlem, Georgia, on November 26, 1968. George Battles at the time of the accident was driving a 1969 Chevrolet manufactured by General Motors and 'co-purchased' by George and the plaintiff from Pierson Chevrolet, Inc., one of General Motors' retail dealers in Etowah County, Alabama.

The plaintiff amended her complaint by adding Counts 4 and 5 and by withdrawing all other counts. Plaintiff later amended her complaint by adding Count A. The defendants each interposed a plea captioned 'Plea Five,' to which the plaintiff demurred.

The two concluding paragraphs of the judgment of the trial court here under review show those rulings of the court which culminated in and superinduced the taking of the nonsuit. Roan v. Associates Discount Corporation, 281 Ala. 100, 199 So.2d 643. Those paragraphs read:

'On this the 26th day of June, 1972, came the parties by their attorneys, and in open court, plaintiff elects to, and moves the court for a nonsuit, with notice in open court of an appeal by reason of the action of the court in overruling plaintiff's demurrer to Plea Five of each defendant as an answer to the sole counts in the present complaint, namely, Counts Four and 'A,' separately and severally; and for the further action of the court, on November 23, 1970 in sustaining demurrer of defendants to Count Five of plaintiff's complaint; and said motion for a nonsuit having been fully considered and understood by the court,

'It is ordered and adjudged by the court that said motion be, and the same is granted and this cause is dismissed; all costs herein accrued are taxed against plaintiff for which execution may issue.'

The judgment of nonsuit is sufficient to support an appeal although it is usual for such judgment entries to contain the words 'let the defendant go hence.' We have held that such is the legal effect of a judgment containing substantially the language of the judgment here under review. Anderson v. Howard Hall Company, 278 Ala. 491, 179 So.2d 71, and cases cited.

The parties will be designated as plaintiff and defendants, according to the position they occupied in the trial court.

Counts Four and A charge the defendants with negligence. The demurrers interposed to those counts were overruled; consequently, the sufficiency of those counts is not before us.

Plaintiff does complain of the action of the trial court in sustaining the demurrers Count Five will be set out in the report of the case.

interposed separately by the defendants to Count Five. (See Appendix)

In Count Five plaintiff seeks to show a cause of action 'for the homicide or wrongful death' of her twenty-two-year-old son based solely on the alleged breach of an implied warranty made in Alabama and breached in Georgia, according to the averments of the court when it is construed most strongly against plaintiff, as they must be construed when assailed by demurrer. Atkins v. Wallace, 273 Ala. 210, 137 So.2d 750; Thompson Tractor Co. v. Cobb, 283 Ala. 100, 214 So.2d 558; Harper v. Talladega County, 279 Ala. 365, 185 So.2d 388; Moreno v. May Supply Co., 280 Ala. 157, 190 So.2d 710.

Plaintiff, in Court Five, does not seek recovery under § 123, Title 7, Code of Alabama, our appropriate so-called homicide or wrongful death statute. Her cause of action in that count is based on the Georgia homicide or wrongful death statute, but the Georgia statute is not properly pleaded. There are grounds in the demurrer of each defendant taking that point.

The judgment sustaining the separate demurrers of the defendants was general, merely sustaining the demurrers without specifying any one of the numerous grounds assigned. If any ground of the demurrers interposed separately by the defendants was good, the judgment sustaining the demurrers must be affirmed. Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Buettner Bros. v. Good Hope Missionary Baptist Church, 245 Ala. 553, 18 So.2d 75.

We will refer to some of our cases which tend to support the statement above that the Georgia 'homicide or wrongful death' statute is not properly pleaded in Count Five.

In Forsyth v. Preer, Illges & Co., 62 Ala. 443, Mr. Chief Justice Brickell, writing for the court, said:

'The general rule of pleading in equity, and at common law is, that when a party claims a right, whether as ground of relief, or as a matter of defense, under a foreign law, he must, by appropriate pleading, set out the law, so that the court can see the right claimed falls within it. Cochran (Cockrell) v. Gurley, 26 Ala. 405; Gunn v. Howell, 27 Ala. 663 (62 Am.Dec. 785); Cubbedge, Hazelhurst & Co. v. Napier, MSS. (62 Ala. 518). If the statute of Georgia would affect the validity of the note and mortgage, it is pleaded too generally to be available to the appellants.' (Emphasis supplied) (62 Ala. 446)

Mr. Chief Justice Stone wrote to like effect in Lomb v. Pioneer Savings & Loan Co., 96 Ala. 430, 11 So. 154.

For other cases with similar holdings see Tatum v. Commercial Bank & Trust Co., 193 Ala. 120, 69 So. 508; Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 270; Dawson v. Dawson, 224 Ala. 13, 138 So. 414; Equitable Life Assur. Soc. of United States v. Brandt, 240 Ala. 260, 198 So. 595; Hall v. Proctor, 242 Ala. 636, 7 So.2d 764; Brotherhood of R. R. Trainmen Ins. Dept. v. Pemberton, 38 Ala.App. 647, 93 So.2d 797, cert. denied, 265 Ala. 694, 93 So.2d 801. Also see 134 A.L.R., p. 577; 22 Alabama Lawyer, p. 24; 24 Alabama Lawyer, pp. 364 et seq.

We hold that the trial court did not err in sustaining those grounds of the demurrer which took the point, in effect, that Count Five does not show that a cause of action for wrongful death based upon breach of warranty can be maintained under the laws of Georgia.

It follows from what has been said above that the judgment sustaining the demurrers to Count Five is due to be affirmed. It is so ordered.

We do not wish to be understood as holding that other grounds of the demurrers interposed to Count Five were or The remaining question for our consideration is whether plaintiff has shown on this appeal that the trial court erred to a reversal in overruling plaintiff's demurrers interposed separately to identical pleas filed separately by the defendants. The pleas read:

were not well taken. We see no occasion to deal here with the other grounds.

'PLEA FIVE. For answer to the complaint and to each count thereof, this defendant says that the death of the plaintiff's son, for which she sues, occurred 26 Nobember 1968, in the State of Georgia, and that this action was commenced 17 April 1970; that the substantive law under which the plaintiff's cause of action arose is the law of the State of Georgia and that the statutes of that state creating causes of action for the death of humans (being Chapter 105--13 of the Georgia Code, a copy of which is hereto attached as an exhibit to this plea and which is expressly incorporated herein in its entirety) do not contain, as an integral part thereof, a period of limitation upon the bringing of such an action, so that the period of limitation applicable thereto by the law of Georgia is the general limitation statute pertinent to personal injuries; that the action having been commenced in the State of Alabama, and not being prosecuted under the provisions of Title 7, Sections 25 and 123 of the Code of Alabama (1940) (Recomp.1958), the period of limitation applicable thereto is established by Title 7, Section 26 of the Code of Alabama (1940) (Recomp.1958) so that the action is, therefore, barred by the said statute of limitation.'

There were ten grounds of demurrer addressed to each of the pleas. None of the grounds is specifically mentioned in plaintiff's brief. In Birmingham Trust & Savings Co v. Currey, 175 Ala. 373, 57 So. 962, Mr. Justice Sayre, after pointing out that the sufficiency of both pleas was questioned on that appeal, wrote for the court:

'. . . However defective these pleas may be, we are to consider only that ground of objection to them taken in the court below and Renewed here as a reason for reversal. Something is said in the brief to the effect that material facts are averred in the way of recital only, but we think the criticism may be said to be hypercritical at best, And we find nothing of it in the demurrer. . . .' (Emphasis supplied) (175 Ala. 382, 57 So. 964)

It is well established by the decisions of this court that grounds of demurrer not adequately argued in brief will be considered as waived. Blount Bros. Const. Co. v. Rose, 274 Ala. 429, 149 So.2d 821; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So.2d 164.

It is difficult to relate plaintiff's argument in brief to any ground of the demurrer, but it seems to us that the argument made comes closer to being in support of Ground 9 than any other ground or grounds. Ground 9 reads:

'There is no allegation that the case law of the State of Georgia does not provide a 2-year period of limitation when the same is pleaded in the complaint.'

The defendants' pleas numbered Five, one of which is set...