Birmingham Elec. Co. v. Echols

• Decision Date: 24 June 1947
• Docket Number: 6 Div. 415.
• Parties: BIRMINGHAM ELECTRIC CO. v. ECHOLS et al.
• Court: Alabama Court of Appeals

32 So.2d 374

33 Ala.App. 234

BIRMINGHAM ELECTRIC CO. v. ECHOLS et al.

6 Div. 415.

Alabama Court of Appeals

June 24, 1947

Rehearing Denied Sept. 2, 1947.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellants.

G R. Harsh and O. B. Hall, both of Birmingham, for appellees.

Count 2 of the complaint is as follows:

Count Two. Plaintiff claims of defendant $5000.00 as damages for that heretofore on, to-wit, the 29th day of February, 1944 plaintiff was in an automobile truck, the property of plaintiff, on a public street in the City of Birmingham Jefferson County, Alabama, at or near, to-wit, Avenue J and 20th Street, Ensley in said City, when a street car in charge or control of defendant ran into, upon or against said automobile truck in which plaintiff was riding on said occasion and as a proximate consequence thereof said automobile truck was mashed,

bent, twisted and otherwise injured in various parts thereof; was rendered of greatly less value to plaintiff and plaintiff lost the difference in value of said truck before and after said accident and plaintiff lost the use of said truck for a long time and was put to great trouble, inconvenience and expense in or about the repairing or having same repaired, and plaintiff's head, hips, kidneys and various parts of his person were injured; plaintiff was injured internally; was made sore and sick; was caused to suffer great mental and physical pain and anguish; plaintiff's mental and physical stamina were greatly and permanently impaired; plaintiff's bodily organs were caused to function less properly; plaintiff was permanently injured, crippled and disfigured; was rendered for a long time unable to work and earn money; was rendered permanently less able to work and earn money; and was put to great trouble, inconvenience and expense in and about healing and curing said wounds and injuries.

Plaintiff further avers that a servant, or agent of defendant, acting within the line and scope of his authority as such servant or agent wantonly injured plaintiff on the occasion aforesaid by wantonly causing or wantonly allowing said street car in which plaintiff was riding on said occasion well knowing that so to do would likely or probably cause great personal injury and damage, wherefore, plaintiff sues and plaintiff also claims punitive damages.

The following charge was refused to defendant: 'A3. The court charges you that there is an ordinance in the City of Birmingham relating to traffic which is known as Section 1254 of the City Code of Birmingham reading as follows: '1254a. The driver of a vehicle entering a public street from a private road or drive shall yield the right of way to all vehicles approaching on such public street', and the court charges you that if you are reasonably satisfied from the evidence that Mr. Echols violated said ordinance and thereby proximately contributed to the injuries and damages complained of, then in that event your verdict should be in favor of the defendant, unless you are further reasonably satisfied from the evidence that the defendant wantonly injured the plaintiff.'

CARR Judge.

The status of the record presented by this appeal is set out in the brief of appellant's counsel:

'F. E. Echols, one of the appellees and a plaintiff in the court below, recovered a judgment against the appellant, defendant below, Birmingham Electric Company, in the amount of $950.00 (Case No. 10900-X, Circuit Court of Jefferson County).

'Palmer Echols (whose name the evidence showed was Mrs. Pauline Echols, wife of F. E. Echols) recovered a judgment against appellant (Case No. 10959-X in the Circuit Court of Jefferson County) in the court below in the sum of $250.00. Although the complaint in the last named case was not amended on the trial to state her name correctly, appellant makes no point in that regard in this appeal, and we shall consider the second case as being that of Mrs. Pauline Echols.

'The cases were consolidated for trial in the Circuit Court, and, following the filing, presentation and subsequent overruling of a separate motion for a new trial in each case, separate appeals were taken by the defendant. Since the cases were actually tried together, the appeals are brought to this court on one record, the attorneys for all parties having agreed that this may be done without objection from either side.

'The cases were tried before a jury which returned separate verdicts on which final judgments were rendered in favor of the plaintiffs as above stated.'

There are assignments of error in case No. 10900-X which are not predicated in case No. 10959-X. However, all those which are posed in the latter case also appear in the former. It follows, therefore, that when we have treated all assignments of error in the former case we will have also disposed of those in the latter. In this state of the record, one opinion will respond to the questions presented by each appeal.

The cause of action in each case is stated in Count One of the complaint, charging simple negligence, and in Count Two, claiming wanton negligence. Demurrers were interposed to the complaint in each case, and they were directed to each count thereof separately and severally.

Both causes were submitted to the jury under counts based on simple and wanton negligence. The verdicts of the jury responded generally in each case.

With reference to the rulings on the pleadings, the only question raised here is the action of the trial court in overruling the demurrers to the second count in case No. 10900-X. The count in question adopts the first paragraph of Count One of the complaint and then adds thereto a concluding paragraph. The Reporter will set out in the report of the case Count Two as it appears after the adoption as indicated.

It is clearly obvious that in the second paragraph of this count the pleader failed or omitted to include a line or an averment that was intended. Without the inclusion the sentence is incomplete.

The first matter of material inquiry is to determine whether or not the count, as it appears in the case, states a substantial cause of action. If it does not, it will not support the judgment and a reversal must follow; and this without reference to or concern with the sufficiency of the grounds of the demurrers interposed thereto. Louisville & N. R. Co. v. Williams, 113 Ala. 402, 21 So. 938; Linam v. Jones, 134 Ala. 570, 33 So. 343; Chandler v. Price, 244 Ala. 667, 15 So.2d 462; Griffin v. Fowler, 17 Ala.App. 163, 82 So. 653; Hardy v. Glass, 17 Ala.App. 278, 84 So. 569.

It will be noted that the omission which was likely caused by fault in typing appears in the attempt to set out the quo modo of the charge of wantonness.

This court stated the rule applicable to good pleading in William E. Harden, Inc. v. Harden, 29 Ala.App. 411, 197 So. 94, 96: 'It has long been a settled rule of pleading in this State, that an averment, that a specified injury was inflicted by reason of the negligence of the defendant, is a good and sufficient charge of simple negligence; and, that a specified injury was sustained as the proximate result of the wanton, or wilful and intentional negligence of the defendant is a good and sufficient charge of wanton negligence, and this without setting forth the facts showing the wanton misconduct. On the other hand, when the pleader attempts to set out the facts, or quo modo of the negligence charged, then these facts must in law constitute in the first instance a case of simple negligence, and in the second, a case of wanton or willful negligence.'

In Barbour v. Shebor, 177 Ala. 304, 58 So. 276, 277, we find: 'The court did not err in overruling the demurrer to count B of the complaint. The count does not attempt to set out the facts constituting wanton conduct, but, in accordance with the decisions of this court, merely alleges that the injuries were received as the proximate consequence of 'the wanton act of defendant's servant or agent while acting within the line and scope of his authority as such.'' See also, Sotuhern R. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; St. Louis & S. F. R. Co. v. Dennis, 212 Ala. 590, 103 So. 894; J. C. Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461; Taxicab & Touring Car Co. v. Cabiness, 9 Ala.App. 549, 63 So. 774.

The authorities supra, in our view, are competent to support our conclusion that the count in question does state a substantial cause of action and therefore its sufficiency in averments must be raised by the interposition of appropriate demurrers. Title 7, Sec. 570, Code 1940; Hall et al. v....