Bennett v. Bennett

• Decision Date: 17 March 1932
• Docket Number: 8 Div. 301.
• Citation: 140 So. 378,224 Ala. 335
• Parties: BENNETT v. BENNETT.
• Court: Alabama Supreme Court

140 So. 378

224 Ala. 335

BENNETT v. BENNETT.

8 Div. 301.

Supreme Court of Alabama

March 17, 1932

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Action for damages for personal injuries by Alta C. Bennett against John W. Bennett. From a judgment for plaintiff, defendant appeals.

Affirmed.

W. H Mitchell, of Florence, for appellant.

Bradshaw & Barnett, of Florence, for appellee.

BROWN J.

The complaint avers facts raising a duty on the part of the defendant not to negligently injure the plaintiff, specifying the injuries, the manner of their causation, and the date thereof, and avers that the defendant "so negligently drove or propelled said car as to run into or against the car driven by one Lott," and that plaintiff's injuries "were proximately caused by the negligence of the defendant." These are the essential elements of the cause of action. Bugg v. Green, 215 Ala. 343, 110 So. 718; Jones v. Keith, 223 Ala. 36, 134 So. 630; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So 73; Leach, Harrison & Forwood v. Bush, 57 Ala. 145.

The purpose and effect of an averment as to the place of injury is to advise the defendant that he may investigate the alleged accident and obtain evidence material to a defense of the action, and, where the averments of the complaint show, as here, that the defendant was personally present at the time and place of the alleged injury, such averment is not essential. Bugg v. Green, supra; Jones v. Keith, supra.

However, no reason appears why the plaintiff should not make such averment, and, conceding that the demurrer, taking the point that the place of the accident was not averred, was well taken and error was committed by the court in overruling it, it was clearly error without injury, in this case, as the undisputed evidence shows that the defendant had full knowledge as to the alleged injury, the place of its occurrence, and the persons present who witnessed the same. American Railway Express Company et al. v. Reid, 216 Ala. 479, 113 So. 507.

Therefore error to reverse cannot be predicated on the ruling of the court on the demurrer.

The appellant next insists that the court erred in rejecting his pleas of coverture. The argument goes, not to the method of disposing of the pleas-by motion to strike and not on demurrer-but that they presented a good defense to the action, and error attended with injury was committed in striking the pleas on plaintiff's motion. As a matter of pleading and practice, it is well settled that, "Where a pleading, though not frivolous, *** is supposed to be substantially defective, as where the facts alleged do not constitute a cause of action or defense, the objection [to such pleading] must be raised by demurrer; and, on the other hand, that when sufficient facts are stated but they are not stated in the manner required by the rules of pleading, the objection should be taken by motion to strike." Brooks v. Continental Insurance Co., 125 Ala. 615, 29 So. 13, 14; Hill v. Hyde et al., 219 Ala. 155, 121 So. 510; Baker et al. v. State ex rel. Green et al., 222 Ala. 467, 133 So. 291.

Such plea was sustained as presenting a good defense in the recent case of Dawson v. Dawson (Ala. Sup.) 138 So. 414, where the cause of action arose in the state of Mississippi, and under the laws of that state the rights of the parties were governed by the common-law fiction of unity of the person of the husband and wife in the person of the husband, and therefore the law, as declared and enforced in that state, recognized no duty on the part of the husband not to tortiously injure the wife in such sort as to give her a cause of action against him for such injury.

Appellant's contention here is that the holding in Penton v. Penton, 223 Ala. 282, 135 So. 481, "is in conflict with the weight of authority in this and other States, and should be overruled." This contention seems to overlook the fact that the decision in Penton's Case was rested upon a previous construction of our statutes dealing with the domestic relation of husband and wife, providing, inter alia, that "all damages which the wife may be entitled to recover for injuries to her person or reputation, are her separate property" (Code 1923, § 8264), and authorizing the wife to sue in her own name "for the recovery of her separate property."

In Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A. L. R. 1031, it was observed: "*** These sections [§§ 4492, 4497 and 4493, Code of 1907], the last included, have the effect of abrogating the fiction of legal identity, and seem thereby, except as otherwise prescribed, to destroy the foundation of the common law in its application to questions touching the rights of husband and wife inter se. *** The Legislature, as we have seen, has given the wife an action against the husband for injuries to her property rights, and we can hardly conceive that the Legislature intended to deny her the right to sue him separately, in tort, for damages arising from assaults upon her person. The language of the statute covers the one form of injury as well as the other, and we hold that the wife was properly allowed to proceed with her suit, defendant's pleas and special charges requested to the contrary nevertheless. *** As for the policy which would avoid the public airing of family troubles, we see no reason why it should weigh more heavily against this action than against those which the courts universally allow." 201 Ala. 44, 77 So. 335, 337, 6 A. L. R. 1031.

Since that decision these statutes have been readopted into the Code of 1923 (sections 8267, 8272, 8268), without change, and this forecloses further controversy as to their interpretation and effect. Spooney v. State, 217 Ala. 219, 115 So. 308.

If, as held in Johnson's Case, the wife may sue the husband for personal injury from an assault and battery committed by the husband, no sound reason can be stated why she should not maintain an action for any tortious injury by him to her person, and we are content to reaffirm the decision in Penton v. Penton, supra.

The evidence offered by plaintiff, as to the nature and extent of her injury, goes to show, among other injuries, that her nose was "crushed and broken about the upper two-thirds"; that the injury was near the sinus and would cause sinus trouble. She testified in her own behalf, on her direct examination, that she consulted several physicians, and finally consulted Dr. Shea, a specialist of Memphis, Tenn., and he advised that an operation on the nose was necessary, that she had visited Dr. Shea several times since, and that "He had not operated."

On cross-examination the defendant brought out testimony that plaintiff's nose "has never been set. Dr. Roberts said I would have to have an operation on it. I have not had it operated on yet. *** Dr. Robbins said it had been broken and couldn't be fixed and I would have to go to a specialist. I didn't ask Dr. Roberts to give me an operation. Less than a week after I saw Dr. Robbins I went to see Dr. Shea. He told me I ought to have my nose operated on. The Doctors say that waiting and...