Bryant v. Southern Ry. Co.

• Decision Date: 21 May 1903
• Citation: 137 Ala. 488,34 So. 562
• Parties: BRYANT v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

34 So. 562

137 Ala. 488

BRYANT v. SOUTHERN RY. CO.

Supreme Court of Alabama

May 21, 1903

Appeal from Circuit Court, Jackson County; A. H. Alston, Judge.

Action by Alva F. Bryant, as administrator of William T. Dorough deceased, against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The complaint contained two counts. The caption of the complaint and the averments of the two counts as to the capacity in which the plaintiff sues, are sufficiently shown in the opinion.

In the first count of the complaint the plaintiff sought to recover damages for that at a public road crossing the defendant "negligently propelled a locomotive against and killed the plaintiff's intestate." In the second count the averments of negligence were that the defendant "wantonly propelled a locomotive against and killed the plaintiff's intestate." There were demurrers interposed to each of these counts, which were overruled.

The defendant pleaded the general issue and by special plea set up the contributory negligence of the plaintiff's intestate.

The following facts were shown without dispute: Plaintiff's intestate, William T. Dorough, was killed at a public road crossing about a mile west of Scottsboro on Sunday, April 8 1900, at about nine o'clock a. m., by a through freight train of defendant's, which was going west, and running at a speed of from 25 to 30 miles an hour. The crossing was on a curve, where the engineer could not see as much as one-fourth of a mile ahead as he approached from the east. The crossing was also on a fill, 6 or 8 feet high. The public road at the crossing was about 12 or 14 feet wide; just at its west side was a stock gap where the railroad entered a field, in which garlic was growing. An hour or so before the killing the deceased was seen in this field on the north side of the track, gathering garlic. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

During the examination of one Leslie as a witness for the plaintiff the plaintiff sought to prove what was the plaintiff's intestate's manner of walking, and whether or not he walked in a stooping position and used a stick. The defendant moved to exclude this evidence, the court granted the motion, and to each of these rulings the plaintiff separately excepted.

Upon the introduction of all the evidence the court at the request of the defendant gave the general affirmative charge in its behalf, and to the giving of this charge the plaintiff duly excepted.

Martin & Bouldin and Tally & Hackworth, for appellant.

Humes, Sheffey & Speake, for appellee.

HARALSON J.

1. When a complaint does not show a substantial cause of action, a judgment on it will be reversed on error, even if rendered upon a default, and there was no objection to it in the court below. Childress v. Mann, 33 Ala. 206.

Each count in a complaint is considered as the statement of a different cause of action. Maupay v. Holley, 3 Ala. 103; Childress v. Mann, 33 Ala. 206.

"The several counts of a declaration are regarded as its several parts or sections; and it is not only permissible, but often very proper, to avoid unnecessary repetition and perplexity, that one should refer to the other. If, however, there is no express reference, the several counts are considered as distinct as if contained in separate declarations." Robinson v. Drummond, 24 Ala. 174, 178. Each count is as distinct as if in separate declarations or complaints, and must independently of the others contain all necessary averments, or the latter count must expressly refer to the former. Mardis v. Shackleford, 6 Ala. 436; H. A. & B. R. Co. v. Dusenberry, 94 Ala. 418, 10 So. 274.

The caption in the first count in the complaint in this case, is "Alva F. Bryant, Administrator, etc., v. Southern Railway Company." In the body of the complaint is the averment, "The plaintiff, Alva F. Bryant, suing as the administrator of the estate of Wm. F. Dorough, deceased, claims," etc. This averment aids the caption, to the extent of showing in what capacity the plaintiff sues. Blackman v. Moore-Handley Hardware Co., 106 Ala. 458, 17 So. 629. If this had not been done, and we were left to the caption alone, to determine in what capacity the plaintiff was suing, it would be held to be his individual suit, and not one in his representative capacity. Lowery v. Daniel, 98 Ala. 451, 13 So. 527. The words, "administrator, etc.," following the name of Alva F. Bryant, in the caption of the complaint, are mere words of description, and, alone, as stated, import a suit by said Bryant in his individual and not in his representative capacity. A. F. Bryant and A. F. Bryant administrator are one and the same name. Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Westmoreland v. Foster, 60 Ala. 449. The use of the word, "administrator," without stating of whom, does not show that he sues in that capacity, but in his own. Buckley v. Wilson, 56 Ala. 395.

The second count has the caption of the first and no more to aid it. It is independent, and commences, "The plaintiff claims," etc., and avers, that the defendant's agent...