Britling Cafeteria Co. v. Irwin

• Decision Date: 17 January 1935
• Docket Number: 6 Div. 480.
• Citation: 229 Ala. 687,159 So. 228
• Parties: BRITLING CAFETERIA CO. v. IRWIN.
• Court: Alabama Supreme Court

159 So. 228

229 Ala. 687

BRITLING CAFETERIA CO. v. IRWIN.

6 Div. 480.

Supreme Court of Alabama

January 17, 1935

Rehearing Denied Feb. 21, 1935.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for personal injuries by S. L. Irwin against the Britling Cafeteria Company. From a judgment for plaintiff defendant appeals.

Affirmed.

B. F Smith, of Birmingham, for appellant.

W. A Denson, of Birmingham, for appellee.

BROWN Justice.

This is an action on the case by the appellee against the appellant to recover damages for personal injuries alleged to have been inflicted on the plaintiff in a collision between an automobile in which the plaintiff was riding on a public highway and a truck.

The complaint consists of three counts. Count 1 alleges, as inducement, "that on, towit, May 3rd, 1932, plaintiff, while riding in an automobile in a public highway in the County of Jefferson, State of Alabama, at a place where he had the right to be and was not a trespasser, was injured as follows: an automobile truck collided with the automobile in which plaintiff was riding (cataloguing plaintiff's injuries)"; and concludes: "Plaintiff avers said injuries to him were proximately caused by the negligence of the defendant's servants or agents while acting within the line and scope of their employment, which negligence consisted in this: said servants or agents while acting within the line and scope of their employment negligently collided said automobile truck with said automobile in which plaintiff was riding."

Count 2 adopts the inducement of count 1, and further avers "said injuries were proximately caused by the negligence of the defendant's servants or agents while acting within the line and scope of their employment, which negligence consisted in this: said servants or agents while acting within the line and scope of their employment, after becoming aware of the peril of said automobile truck colliding with said automobile in which plaintiff was riding, negligently failed to use all of the means at their command to prevent said automobile truck colliding with said automobile, when by the use of said means said automobile truck would have been prevented from colliding with said automobile in which plaintiff was riding and said injuries would have been avoided." The third count adopts the inducement of the first, and avers " said injuries to him were proximately caused by the wanton, wilful, or intentional conduct of the defendant's servants or agents while acting within the line and scope of their employment, which wanton, wilful or intentional conduct consisted in this: said servants or agents while acting within the line and scope of their employment wantonly, wilfully or intentionally caused said automobile truck to collide with said automobile in which plaintiff was riding, with the knowledge plaintiff would probably be injured thereby, and with reckless disregard of the consequences." (Italics supplied.)

The predicate for the first assignment of error is the "overruling appellant's demurrers as last amended to the counts of the complaint," and, in brief, the only criticism in support of this assignment of error is, that the third count undertakes to state the facts constituting wantonness and the facts stated do not constitute wantonness.

Whatever else may be said of the third count, that is not one of its defects, nor is it subject to the objection that it characterizes the act and not the injury as wanton. Therefore, the holding in Harrison v. Formby et al., 225 Ala. 260, 142 So. 572, is not an apt authority.

"When a complaint shows that both plaintiff and defendant were in the ordinary and rightful use of a highway, and a duty is thereby shown, the general averment of a negligent or wanton injury by defendant of plaintiff is sufficient." Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556, 558; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73.

Each of the counts was defective and subject to some of the grounds of demurrer, in that they failed to show what, if any, relation the defendant or its servants had to the truck. Levans v. Louisville & N. R. Co., 228 Ala. 643, 154 So. 784; Buffalo Rock Co. v. Davis, supra.

However, the evidence is without dispute that the truck was the property of the defendant and was being driven by defendant's servant or agent on the highway, and that he was engaged in and about his master's business; or, to state it otherwise, was acting within the scope of his employment. Hence the overruling of the demurrer was without injury. Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929.

The defendant's several special pleas of contributory negligence were interposed to "the complaint and each count of the...