Crouch v. De Luxe Cab Co.

• Decision Date: 30 June 1954
• Docket Number: 1 Div. 553
• Parties: CROUCH v. DE LUXE CAB CO., Inc.
• Court: Alabama Supreme Court

Page 743

73 So.2d 743

261 Ala. 239

CROUCH v. DE LUXE CAB CO., Inc.

1 Div. 553.

Supreme Court of Alabama.

June 30, 1954.

Robt. E. Hodnette, Jr., Tonsmeire & Hodnette, Mobile, for appellant.

Alex T. Howard, Mobile, for appellee.

STAKELY, Justice.

Ann Crouch (appellant) instituted suit in the Circuit Court of Mobile County against DeLuxe Cab Company, Inc., a corporation (appellee) and one Albert Bolton, claiming damages for injuries alleged to have been received by her on December 27, 1951, while a passenger in an automobile driven by Albert Bolton. Before the case went to trial the complaint was amended by striking Albert Bolton as a party defendant. Trial of the case resulted in a judgment and verdict for the defendant, hence this appeal.

On the night of December 26, 1951, Ann Crouch had a date with Albert Bolton. Together they went to a night club called The Plaza, situated near Mobile, Alabama, at about 9:30 that night. They left The Plaza sometime between one and two A.M. They were returning to Mobile on Fulton Road, a paved road, when just outside the city limits the car driven by Albert Bolton collided with a taxicab owned by the DeLuxe Cab Company.

The taxicab was parked alongside the road with two of its wheels on Fulton Road and two wheels off. According to James Jensen, the driver of the taxicab, he stopped to aid one Thomas T. Grace and his wife, whose automobile was parked off the road out of gas. It is contended by the plaintiff, Ann Crouch, and Albert Bolton that the taxicab had no lights burning. This was denied by James Jensen, who claims that both his taillights and his headlights were on. According to James Jensen and Thomas T. Grace and his wife, the car in which Ann Crouch was riding was weaving back and forth down the road prior to the collision. Police officers who arrived at the scene shortly after the accident testified that Albert Bolton appeared intoxicated at the time they were at the wreck.

The defendant, DeLuxe Cab Company, filed a plea of the general issue and a plea of contributory negligence. The plaintiff demurred to the plea of contributory negligence, which was overruled.

The pivotal question in the case appears to be whether the court acted correctly in overruling the demurrer to the plea of contributory negligence. This plea reads as follows: '2. And for further answer to the complaint as amended, this defendant says that the plaintiff at the time and place complained of was herself guilty of negligence, which proximately contributed to the injury and damages complained of.'

The demurrer is that, 'Said plea contains no facts that show whether or not plaintiff was herself guilty of negligence which proximately contributed to her injuries.'

This brings us to a consideration of Rule 37 of the Rules of Practice in the Circuit and Inferior Courts of Common Law Jurisdiction. Code of 1940, Title 7 Appendix. We set out Rule 37 as follows:

'In pleading contributory negligence no greater particularity of averment as respects the acts, omissions, conduct or behavior relied on as constituting contributory negligence is required than is required in averring, in a complaint, the acts, omissions, conduct or behavior relied on as constituting negligence. A plea of contributory negligence shall be interpreted as charging contributory negligence subsequent to discovery of peril to the same extent that an averment of negligence in a complaint, of the same tenor as the averment of contributory negligence in the plea, would be interpreted as charging negligence subsequent to discovery of peril.'

In Pankey v. City of Mobile, 250 Ala. 566, 567, 35 So.2d 497, 499, in discussing the scope and purpose of Rule 37, it was said:

'The scope and purpose of Rule 37 was and is to relax the requirement of the rule of particularity established by the former decisions and to substitute therefor the more liberal rule applicable to pleading a cause of action for personal injury in the complaint based on negligence which, to state its general effect, is that facts must be averred showing a duty owed by defendant to plaintiff followed by a general averment of negligence as proximately causing the injury. * * *'

Again in Birmingham Electric Co. v. Carver, 255 Ala. 471, 52 So.2d 200, 203, the principle laid down in the foregoing case was reiterated and among other things the court said:

'* * * The complaint or plea should allege that the alleged duty, specifying it, was negligently breached without the need of specifying the details constituting the breach. Prior to Rule 37, the plea must allege in addition to the above the particular manner in which it was breached. * * *'

Since it is obvious from the foregoing authorities that under Rule 37 the plea must show an alleged duty, it is appropriate to ask, what is the duty owing by the plaintiff to the defendant in the instant case? In this connection it should be remembered that the negligence, if any, of the driver Bolton is not imputed to the plaintiff, because...