City Ice Delivery Co. v. Goode

• Decision Date: 19 April 1934
• Docket Number: 6 Div. 337.
• Citation: 228 Ala. 648,154 So. 775
• Parties: CITY ICE DELIVERY CO. v. GOODE.
• Court: Alabama Supreme Court

154 So. 775

228 Ala. 648

CITY ICE DELIVERY CO. v. GOODE.

6 Div. 337.

Supreme Court of Alabama

April 19, 1934

Rehearing Denied May 31, 1934.

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

Action for wrongful death by W. F. Goode, as administrator of the estate of M. C. Goode, deceased, against the City Ice Delivery Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

London Yancey & Brower, of Birmingham, for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

PER CURIAM.

This is an action on the case under the homicide act (section 5696 Code) by the personal representative of M. C. Goode deceased, against the appellant for wrongfully causing the death of said Goode.

Count 1 of the complaint, as last amended, avers that, "while plaintiff's intestate was by invitation or request of defendant," on defendant's mule lot, "a mule of which, on said occasion, defendant was in charge or control, kicked or struck plaintiff's intestate and as a proximate consequence thereof plaintiff died." Plaintiff further avers "that on said occasion defendant negligently caused or allowed said animal, towit, a mule, to kick or strike plaintiff's intestate, and as a proximate consequence of defendant's said negligence, plaintiff's intestate was so injured that he died."

The second count, after adopting the inducement averments of count 1, avers "that on said occasion a servant or agent of defendant acting within the line and scope of his authority as such servant or agent wantonly caused or wantonly allowed said animal, towit, a mule, to kick or strike plaintiff's intestate as aforesaid, and as a proximate consequence of said wanton conduct plaintiff's intestate was as aforesaid, so injured that he died."

These counts show that plaintiff's intestate was on defendant's premises as an invitee, and that he was injured as a proximate consequence of the negligence of the defendant, or the wanton conduct of its agent or servant while acting within the scope of his employment, and were not subject to any of the objections stated in the demurrers interposed thereto. Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Farmers' & Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406.

Count 4, as last amended, avers that, "while plaintiff's intestate was by invitation of defendant upon defendant's premises, towit, a mule lot * * * an animal, towit, a mule which, on said occasion, was owned or being kept by defendant, kicked or otherwise injured plaintiff's intestate, so that as a proximate consequence thereof, plaintiff's said intestate died. Plaintiff further avers that said mule was at said time a vicious or dangerous animal and that on said occasion defendant negligently managed said mule and as a proximate consequence of said negligence, and without fault upon the part of plaintiff's said intestate, plaintiff suffered said injury and damage." (Italics supplied.)

"When a complaint for personal injuries specifies particular acts or omissions of the defendant as constituting the negligence upon which the action is founded, the complaint is insufficient on apt demurrer, unless such acts in themselves show or suggest negligence, and a general averment of negligence does not cure the defective specification." Birmingham Ry. L. & P. Co. v. Barrett, 179 Ala. 274, 279, 60 So. 262, 263

.

Managing the mule in the mule lot does not show or suggest negligence, certainly in the absence of knowledge on the part of defendant that the mule was a vicious animal, and the circumstances attending the management. Our judgment is that said count 4 was subject to the defects pointed out by grounds 8, 18, A, and I of the demurrer interposed thereto, and the court erred in overruling the same.

This error was not rendered innocuous by the proof. The evidence is without dispute that on the occasion of the injury of plaintiff's intestate the defendant did not manage the mule; the mule was under the management of the farrier, who, as an independent contractor, was shoeing the mule in pursuance of his contract with defendant. The only agent or servant of the defendant present was Ragsdale, who looked after feeding and attending to the mules in the lot, and, on the occasion in question, was under the direction of W. F. Goode, holding the rope or "tackle" attached to the mule's hind foot and arranged by said W. F. Goode so as to hold up the hind foot and prevent the mule from kicking. Said intestate, an employee of W. F. Goode, though he had no duty to perform in respect to this work, as a volunteer was holding the bridle of the mule. After shoeing one hind foot of the mule, the rope was attached to the other hind foot and arranged by said W. F. Goode, and was likewise being held by Ragsdale, with intestate holding the bridle, and W. F. Goode directed Ragsdale to hand to him the tool box, or shove it to him, and at this juncture the mule lunged and broke Ragsdale's hold on the rope, and, with intestate holding onto the bridle, scrambled to the center of the mule lot, and W. F. Goode directed intestate to turn the mule loose, and at this juncture the mule kicked intestate, inflicting upon him the injuries causing his death.

The only possible breach of obligation or duty imputable to the defendant, so far as the evidence shows, or tends to show, is that it failed to have present men capable of holding the mule while W. F. Goode, the...