Brooks v. Liebert

• Decision Date: 18 December 1947
• Docket Number: 4 Div. 466.
• Parties: BROOKS v. LIEBERT.
• Court: Alabama Supreme Court

33 So.2d 321

250 Ala. 142

BROOKS v. LIEBERT.

4 Div. 466.

Supreme Court of Alabama

December 18, 1947

Rehearing Denied Jan. 22, 1948.

Jackson, Rives & Pettus, of Birmingham, for appellant.

C L. Rowe, of Elba, for appellee.

FOSTER, Justice.

This is a suit under the homicide statute, Code 1940, Tit. 7, § 123 for the death of a person riding in the car driven by appellant, resulting in a judgment for plaintiff.

There are two counts in the complaint: No. 1 is intended to be a wanton count, and No. 2 is a simple negligence count.

The first question presented on this appeal is whether count 2 is subject to the demurrer interposed. To quote the features of that count which illustrate the contention: Defendant 'did then and there willfully or wantonly injure plaintiff's intestate * * * by so heedlessly or recklessly operating the automobile which he was driving as to cause the same to collide with an automobile approaching in close proximity from the opposite direction * * * whereby and as a proximate result and consequence of which said intestate received personal injuries from which he died.'

The contention as argued and as made by demurrer is that the count undertakes to set forth the facts constituting a willful or wanton injury, and these facts are not sufficient in law to do so. The point is that though the count alleges that the injury causing the death was willfully or wantonly inflicted, it states further that this was done by 'heedlessly or recklessly operating the automobile,' and that heedlessly or recklessly are not equivalent to willfully or wantonly and are repugnant and demurrable, and finally no more than a negligence count, and that as a negligence count it does not state a cause of action under the guest statute. Title 36, section 95, Code of 1940. So that if it states a wanton injury and death sufficiently as such that statute has been complied with.

The contention is a substantial one, and must be seriously considered, though we have reached the conclusion that we cannot sustain it. We do not seem to have had a case before this Court exactly like this one. But we have had several which illustrate the contention.

In Yarbrough v. Carter, 179 Ala. 356, 60 So. 833, the count was in material respects similar to this one, insofar as it alleges that the injury was wantonly or willfully inflicted, but then alleges that it was 'by causing an automobile to run over * * * or against plaintiff.' The material difference being that here it alleges 'by so heedlessly or recklessly operating the automobile, etc.' That difference seems to be that in one it is 'by causing,' and in the other by heedlessly or recklessly causing. In the Yarbrough case, supra, the court held that the averments have been repeatedly held sufficient by the Court and distinguished from that line of cases in which the counts attempt to set forth the facts relied on to show wanton or willful injury. And in Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779, 781, the Court was dealing with the allegations of wantonness and willfulness as in the case of Yarbrough v. Carter, supra, and on that authority held the count good and not subject to demurrer as a wanton count, saying 'its allegations of fact are brief, and they are presented in an intelligent from so that a material issue can be taken thereon by the defendant. That is what the law requires.' And in the case of Dean v. Adams, Ala.Sup., 30 So.2d 903, there was a count similar to that in those two cases cited above but alleging further that she suffered the injuries 'as a proximate result of the wanton act herein complained of.' The count was sustained as a wanton count on the basis of those cases, supra. To a like effect is Buffalo Rock Co v. Davis, 228 Ala. 603, 154 So. 556.

The argument of appellant is that since in those cases, though the count does not state in words that the wanton injury was inflicted by wantonly causing, etc., it does not further describe the word 'causing,' it could therefore be properly referable to the word wantonly above, whereas in the instant case 'operating' is preceded by 'heedlessly or recklessly,' and therefore cannot be referable to 'wantonly' above, unless they are equal to 'wantonly,' and then citing cases to show that those terms are not equal to wantonly, but when not aided by further language they are to be treated as 'negligently' (Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219), and that if the word negligently had been used where 'heedlessly or recklessly' are used, the effect would make the count repugnant and at most one for negligence not sufficient under the guest statute.

Insofar as here material, we take issue with the argument because, for one reason, 'heedlessly or recklessly' do not always mean simply 'negligently.' Louisville & Nashville R. Co. v. Orr, 121 Ala. 489, 499, 26 So. 35. It is true that, taken alone, they do not contain all the elements of wantonness, because they do not necessarily imply a knowledge of the danger. But they denote a status which is an element of wantonness, and without which wantonness could not exist. So that when the pleader alleges that the injury was wantonly inflicted by heedlessly or recklessly operating the car, it would be a harsh construction of his language to hold that the second phrase meant to change the effect of what he had said immediately preceding, or was repugnant to it.

This Court has held that a count charging a 'wanton or willful' injury will not support a recovery on proof of 'simple negligence,' and a charge in a complaint that an injury was done 'negligently,...