Bugg v. Green

• Decision Date: 09 December 1926
• Docket Number: 6 Div. 719
• Citation: 110 So. 718,215 Ala. 343
• Parties: BUGG v. GREEN.
• Court: Alabama Supreme Court

110 So. 718

215 Ala. 343

BUGG v. GREEN.

6 Div. 719

Supreme Court of Alabama

December 9, 1926

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action by Emma Green against B.L. Bugg as receiver of the Atlanta Birmingham & Atlantic Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

See also, Bugg v. Meredith, 214 Ala. 264, 107 So. 805.

Bouldin Gardner, and Thomas, JJ., dissenting in part.

Huey & Welch, of Birmingham, for appellant.

McEniry & McEniry, of Bessemer, for appellee.

BOULDIN J.

The action is in damages for killing plaintiff's horse in the negligent operation of a railway locomotive. The place of the accident is alleged in the compaint to be "in Shelby county, Ala., at or near Bamford, Ala." The demurrer challenges this as a sufficient designation of place.

The Code of 1876, § 1711, required the complaint to specify "the time when and the place where the killing or injury occurred." Construing this section, it was said:

"The place should be averred to be at a certain locality along the line of the road, describing its distance and direction from a named depot, or other known point." East Tennessee V. & G.R. Co. v. Carloss, 77 Ala. 443, 447.

This provision was repealed by omission from Code of 1886, § 1150, and later Codes. Western Ry. of Ala. v. Sistrunk, 85 Ala. 352, 5 So. 79.

In Southern R. Co. v. Hoge, 141 Ala. 351, 37 So. 439, an averment that the locomotive was being operated on a railway "over and through the county of Etowah, from Rome, Ga., to Attalla, Ala.," was held sufficient against apt demurrer.

In Nashville, C. & St. L. Ry. v. Bingham, 182 Ala. 640, 62 So. 111, the place was averred to be on defendant's railroad "in this county, leading north from Huntsville." Held sufficiently definite and certain as to place.

In Western Ry. of Ala. v. Stone, 145 Ala. 663, 39 So. 723, the averment was "at or near Stone's Tank in the county of Montgomery." Held sufficiently definite as to place to put the defendant on notice.

In Western R. of Ala. v. McPherson, 146 Ala. 427, 40 So. 934, the place was laid "within or near the corporate limits of Lanett, Ala., in said [Chambers] county, within one-fourth mile of a public road crossing." Held not subject to demurrer for failure to "show with sufficient certainty where the alleged injury occurred."

In Louisville & N.R. Co. v. Dumas, 209 Ala. 324, 96 So. 243, cited by appellee, the report of the case does not disclose the grounds of demurrer. The original record shows the demurrer was general, and did not raise the question here involved.

Under this line of cases the complaint in the present case was sufficient.

In Western Railway of Ala. v. Turner, 170 Ala. 643, 54 So. 527, the averment of place in counts 2 and 3 was "in Macon county, Ala." The court said:

"Good pleading should require a more specific designation of the place of killing the mule than is set out in counts 2 and 3 of the complaint, but this point, while argued, is not raised by the demurrers."

In Alabama G.S.R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125, the averment of place was "in the Northern judicial division of St. Clair county, Ala., through and near Caldwell in said county." The court said:

"The defendant was not properly acquainted of the place of injury, so as to prepare the defense, as was pointed out in the Turner Case, supra."

In Louisville & N.R. Co. v. Whitley, 213 Ala. 525, 105 So. 661, the injury was averred to be "at a point about three miles from Sylacauga in said county." Held the place was not stated with sufficient certainty, citing the Turner and Sheffield Cases above. The Sheffield and Whitley Cases are not in harmony with the earlier line of cases noted above.

Dealing with the matter on principle, the action being personal and transitory, the place of the accident is not an element of the cause of action. If special duties are enjoined at places named by statute, and liability based upon such statute, the complaint must bring the case within the statute by averment of place. Such is not the case here.

The averment of time and place, therefore, in actions of this sort is to identify the event or occurrence made the basis of the action in such manner as will give reasonable notice to defendant; such notice as will enable defendant to investigate his alleged liability, and prepare his defense, if any he has. This is the purpose of the averment recognized in our cases under the statute of 1876 and since its repeal.

Matters within the knowledge of defendant or of agents for whose acts it is answerable need not be averred with the same particularity as when peculiarly within the knowledge of plaintiff.

Our statutes require the section master on whose section live stock is killed or injured to promptly notify the owner, or, if unknown, a justice of the peace, and cause the value of stock killed, or the amount of the injury, to be assessed or appraised. Code, §§ 10004-10006. Certain duties in the disposal of the bodies of animals killed are prescribed by the sanitary laws. Code, § 3223. The trainmen are required to keep a lookout for live stock on the track.

In view of the knowledge thus imputed to defendant's agents, we think a complaint showing that a described animal was killed about a named date at or near a named station gives sufficient notice, and is not subject to demurrer for uncertainty as to place. It is not to be supposed that animals of like description are killed about the same date in a zone covered by a passing train within a short period of time in such numbers as to render it impractical to defend the particular case.

The Stone Case, supra, on all fours with the case at bar, has stood as the law unreversed for some 20 years. The Hoge and Bingham Cases approved less certain designations of place. We are not disposed to overrule this line of cases. See general rule elsewhere, 33 Cyc. 1260. Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126. The Turner Case, supra, is clearly distinguishable from the case at bar. The location of an accident within a given county merely may cover several railroad sections, stations, and neighborhoods.

The cases of Alabama G.S.R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125, and Louisville & N.R. Co. v. Whitley, 213 Ala. 525, 105 So. 661, should, in the opinion of the writer, be overruled on the point under discussion.

The suit was brought, and judgment recovered against "B.L. Bugg, as receiver for the Atlanta, Birmingham & Atlantic Railway." The evidence tended to show the horse was killed by a locomotive operated over this railroad. The engineer whose negligence was relied upon testified that he was at the time in the employ of the "A., B. & A."

Appellant here insists that the affirmative charge should have been given for failure to prove the defendant was receiver, was operating the road as such, and responsible for the negligence of trainmen. Prior to circuit court rules 34 and 35, it was held such...