C.C. Snyder Cigar & Tobacco Co. v. Stutts

• Decision Date: 14 January 1926
• Docket Number: 8 Div. 779
• Citation: 107 So. 73,214 Ala. 132
• Parties: C.C. SNYDER CIGAR & TOBACCO CO. v. STUTTS.
• Court: Alabama Supreme Court

107 So. 73

214 Ala. 132

C.C. SNYDER CIGAR & TOBACCO CO. v. STUTTS.

8 Div. 779

Supreme Court of Alabama

January 14, 1926

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

Action by John W. Stutts against the C.C. Snyder Cigar & Tobacco Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Count for collision held insufficient in failing to show duty of defendant to exercise due care not to collide with plaintiff.

Counts 1, 2, and 5 (as amended) of the complaint are as follows:

"(1) Plaintiff claims of the defendant the sum of $400 in that, heretofore and on, to wit, the 29th day of December 1923, the defendant, a corporation doing business in the city of Sheffield, Ala., in the state of Alabama, county of Colbert, and incorporated under the laws of the aforesaid state, by its servant or agent, acting within the line and scope of his duty, did so negligently run or drive an automobile of the defendant corporation as to run into or against the plaintiff's automobile, which was being driven by plaintiff. Plaintiff further avers that his automobile was damaged, and that the damage complained of was the proximate result of the negligence of the servant employee or agent of the defendant corporation.

"(2) Plaintiff claims of the defendant the sum of $400 in that heretofore and on, to wit, the 29th day of December, 1923, the plaintiff was driving his automobile on the streets of the city of Florence at the crossing of Wood avenue and Mobile street, both highways at this point being in the limits of the city of Florence, Ala.; that he was going north on Wood avenue, and defendant's car was going west on Mobile street, but that he, the plaintiff, reached the intersection of the crossing of said streets before the defendant's car, and plaintiff further avers that he was on the right side of the street as required by law, and had the right-of-way according to law, and while so driving his automobile the defendant's employee did negligently and carelessly run the defendant's automobile into the plaintiff's automobile and damaged plaintiff's automobile in the aforesaid sum. Plaintiff further avers that the injury complained of is the proximate result of the negligence of the defendant's agent or employee while acting within the line or scope of his employment.

"(5) Plaintiff claims of the defendant in the sum of $400 in that: Heretofore and on, to wit, the 29th day of December, 1923, there was an ordinance in the city of Florence, Ala., to wit, section 4 of an ordinance passed by commissioners of said city on May 2, 1916, which reads as follows: 'The streets, avenues, and drives of the city of Florence are hereby declared to be congested districts, and a rate of speed exceeding 15 miles per hour thereon is hereby prohibited. A rate of speed at street corners, crossings, or in the business sections, or where traffic is congested, exceeding 10 miles per hour is hereby prohibited. A rate of speed which is dangerous to property, life, or limb is hereby prohibited.' That on said date of the 29th day of December, 1923, plaintiff was driving his car north on Wood avenue in the city of Florence, Ala., and the defendant's employee or agent was driving its car west on Mobile street in the city of Florence, Ala., and that the defendant's employee or agent at this time, while driving the defendant's automobile in the intersection of said streets at a rate of speed exceeding 15 miles per hour, did negligently and carelessly run defendant's automobile into or against plaintiff's automobile and damaged the plaintiff's automobile in the sum aforesaid, and plaintiff further avers that said damage was the proximate result of the negligence of the defendant's agent or employee while acting within the line or scope of his employment."

Defendant demurred to the complaint as a whole upon the grounds:

"(1) For aught that appears to the contrary, plaintiff's complaint and the counts thereof do not state sufficient facts and averments to give this court jurisdiction of this cause.

"(2) For that said complaint and the counts thereof do not apprise this defendant with sufficient certainty where and wherein it breached any duty owing plaintiff."

--and assigned these grounds specially to count 2:

"(1) For that negligence therein is alleged in general terms, and as a mere conclusion of the pleader.

"(2) For aught that appears to the contrary, plaintiff was himself a trespasser at the time and place of the alleged collision out of which this claim arises.

"(3) For that defendant is not apprised with sufficient certainty as to the time and place said collision occurred.

"(4) For that the facts set out and the allegations of said count are insufficient to give this court jurisdiction of this cause.

"(5) For that it is not affirmatively alleged that plaintiff had a right, at the time of the alleged collision, to operate his said automobile on the said Wood avenue, or that he was not himself a trespasser at the time and place of the collision."

B.F. Smith, of Birmingham, for appellant.

Bradshaw & Barnett, of Florence, for appellee.

SOMERVILLE J.

The first count of the complaint does not show that plaintiff, at the time of the alleged collision, was at a place where defen...