Birmingham Ry., Light & Power Co. v. Abbott

• Decision Date: 14 November 1912
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. ABBOTT.
• Court: Alabama Court of Appeals

60 So. 970

6 Ala.App. 643

BIRMINGHAM RY., LIGHT & POWER CO. v. ABBOTT.

Court of Appeals of Alabama

November 14, 1912

Rehearing Denied Jan. 23, 1913.

Appeal from City Court of Birmingham; J. T. Stokely, Judge.

Action by T. Jones Abbott against the Birmingham Railway, Light &amp Power Company for trespass. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint is as follows:

Count 1: "The plaintiff claims of the defendant $5,000 as damages, for that, heretofore, to wit, on the 27th day of June, 1910, defendant, with his family, was residing in Birmingham, Alabama, to wit, at 812 First avenue, West End that at said time defendant was operating an electric light plant, and was supplying said residence with electric light that on said day defendant's servant or agent, acting within the line and scope of his authority as such wrongfully entered upon said premises, and in said residence, and as a proximate consequence of said wrong plaintiff's wife, being critically ill, was made worse, and plaintiff was put to great trouble, inconvenience, and expense for medicine, medical attention, cure, and nursing in or about his efforts to heal and cure the said worse condition of his said wife, and plaintiff was greatly harassed, vexed, and annoyed, and the electric lights in said house were caused not to burn for a long time, and plaintiff was compelled to do without electric lights in said house for a long time, and plaintiff was put to great trouble, inconvenience, and expense in and about procuring light, all to plaintiff's damage."

(3) "Plaintiff claims of defendant the sum of $5,000 as damages, for that, heretofore, on, to wit, the 22d day of June, 1910, defendant, under a franchise from the city of Birmingham, was engaged in furnishing the electric lights for lighting residences in said city, and was engaged in furnishing plaintiff, at his residence in said city, to wit, 812 First avenue, West End, with electric lights in said residence, and defendant had undertaken to continue to furnish plaintiff electric light in said residence to a time to and including said 27th day of June, 1910, and it became and was the duty of defendant to furnish said light in said residence for said time; but, notwithstanding said duty, defendant wrongfully, on said day, caused said lights to be cut out, or otherwise to cease to be furnished at said residence, and as a proximate consequence thereof, plaintiff's wife being critically ill, plaintiff was greatly vexed, harassed, and annoyed, and suffered the injuries and damages set out in the first count of the complaint."

The demurrers were that the counts were vague, indefinite, and uncertain; that it did not sufficiently appear what duty defendant owed plaintiff, or how said duty was violated; because no facts are averred showing that such servant or agent was acting within the line and scope of his authority as such at the time of the alleged wrong; because two separate and distinct causes of action are attempted to be stated in one and the same count; because no causes of action are therein stated; because it does not appear that plaintiff suffered any recoverable damages; because the terms of said alleged contract are not averred with sufficient definiteness; because it does not appear therefrom with sufficient certainty that defendant was under any duty to furnish plaintiff any lights at that time; because it does not appear that it was defendant's duty under said contract to furnish said lights to plaintiff on the said day and date mentioned; and because it does not appear that it was defendant's duty, at the time said lights were cut out, to continue to furnish said electric lights in said residence; and other grounds not necessary to be here set up.

Tillman, Bradley & Morrow and John S. Stone, all of Birmingham, for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

PER CURIAM.

The reporter, in reporting this case, will set out the first and third counts of the complaint and the demurrers filed to said counts.

1. The first count of the complaint is plainly a count in trespass. In an action of trespass it is necessary for the evidence to show that the plaintiff's possession was involved, and for that reason the evidence must show, to justify a recovery by the plaintiff, that the plaintiff, at the time of the trespass, was in the actual or constructive possession of the property trespassed upon. When we say constructive possession, we mean such a constructive possession as gives to the plaintiff the immediate right to the actual possession, and not that constructive possession which the law gives him, for instance, through a tenant. Under our statutes a complaint which shows that the lands belonged to or were in the possession of the plaintiff at the time of the trespass sufficiently meets the requirements of the law, provided it is not defective for some other reason. Code 1907, § 5382, form 26. The code form for complaints in actions of trespass does not however, in the slightest degree affect the above rule as to the evidence in such cases.

The count now under consideration alleges that the plaintiff, "with his family, was residing in Birmingham, Alabama, to wit, at 812 First avenue, West End," and that "defendant's servant or agent, acting within the line and scope of his authority as such, wrongfully entered upon said premises and in said residence," etc. This count therefore shows that the trespass was committed upon plaintiff's residence. The word "residence" is synonymous with the words "home" or "dwelling." Reg. v. Hammond, 17 O. B. 772; Town of North Yarmouth v. Town of West Gardner, 58 Me. 207, 4 Am. Rep. 279; Words and Phrases, title "Residence."

A court, in passing upon the question as to the sufficiency vel non of a complaint or a plea, should give to the words used by the pleader, unless such words possess some peculiar, technical meaning, when considered in the connection in which they are used, their ordinary import; and when a complaint is demurred to mere hypercritical objections not going to the merits of the cause of action should be disregarded. The law is reasonable, and all that it requires of a complaint is that it shall state in plain and simple language facts showing a cause of action, and inform the defendant as to what is claimed. Western Union Telegraph Co. v. Snell, 3 Ala. App. 263, 56 So. 854.

A man's home is his abiding place--a place of which, out of necessity, he is possessed--and, in our opinion, the first count of the complaint shows with sufficient certainty that the plaintiff was in possession of the residence at the time of the alleged trespass. Grisham v. Bodman, 111 Ala. 194, 20 So. 514; Southern Ry. Co. v. McEntire, 169 Ala. 42, 53 So. 158.

As the unlawful invasion of the plaintiff's possession of the residence is the gravamen of the first count, we are clearly of the opinion that it was not subject to the appellant's demurrer.

2. The third count is an action of trespass on the case. The gravamen of this count is the failure of the appellant to furnish the appellee with lights at a time when, it is alleged, the appellant owed the appellee the duty to furnish such lights. In other words, the count is for damages which appellee alleges he suffered because of a breach of duty which the appellee claims the appellant owed to him. It appears from this count that the appellant, under a franchise from the city of Birmingham, at the time of the alleged wrong, "was engaged in furnishing electric lights for lighting residences in said...