Gilbert v. Gwin-McCollum Funeral Home, Inc.

• Decision Date: 20 November 1958
• Docket Number: 6 Div. 320,GWIN-M
• Parties: John W. CILBERT v.cCOLLUM FUNERAL HOME, Incorporated, etc.
• Court: Alabama Supreme Court

Page 646

106 So.2d 646

268 Ala. 372

John W. CILBERT v. GWIN-McCOLLUM FUNERAL HOME, Incorporated, etc.

6 Div. 320.

Supreme Court of Alabama.

Nov. 20, 1958.

Lipscomb, Brobston, Jones & Brobston, W. E. Brobston, Bessemer, for appellant.

Huey, Stone & Patton, Bessemer, for appellee.

Count A of the complaint is as follows:

Count 'A':

'Plaintiff claims of the defendant the sum of Five Thousand Dollars ($5,000.00) damages, for this, that heretofore, on to wit: May 26, 1956, the plaintiff was a passenger in an automobile, then and there being operated by W. M. Gossett, on and along Ninth Street, otherwise known as Tuscaloosa Road, a public highway in the City of Bessemer, Alabama, near its intersection with Ninth Avenue, commonly known and referred to as Tuscaloosa Highway, and being that certain public highway that runs between Bessemer, Alabama, and Tuscaloosa, Alabama, designated as U. S. Highway No. 11; that at said time and for a long time prior thereto said U. S. Highway No. 11 was a main thoroughfare and the most heavily travelled highway through Bessemer, Alabama, and at the time and place aforesaid said highway was crossed or intersected by Ninth Street, otherwise known as Tuscaloosa Road, that at the time and place aforesaid the automobile in which the plaintiff was riding was struck with great force by a trailer truck then and there being operated on or along Ninth Avenue, U. S. Highway No. 11, and that plaintiff was thereby severely injured as follows:

'He suffered cerebral concussion, fracture of the right clavicle, fracture of right upper ribs, comminuted fracture of the right tibia and fibula, multiple contusions and abrasions, and lacerations of the left eyebrow area, and he suffered and continues to suffer great physical pain and mental anguish.

'Plaintiff further avers that he was in said automobile at said time and place as a guest passenger and that said automobile in which plaintiff was then and there riding was in a funeral procession, and that said funeral procession was under the charge of the defendant.

'Plaintiff further avers that on and for a long time prior to May 26, 1956, the defendant conducted a mortuary and funeral business in the City of Bessemer, Alabama, and plaintiff avers that on to wit: May 26, 1956, the defendant at its place of business at to wit: 1300 Fourth Avenue North, Bessemer, Alabama, and immediately following that portion of the funeral service which was conducted at defendant's said place of business, organized or directed or supervised the funeral procession composed of to wit: fifteen (15) automobiles, including the automobile in which plaintiff was a passenger; at said time and place defendant directed and supervised the spacing of said automobiles within said funeral procession, and the defendant further directed the operators of each of said automobiles to turn on the headlights of each of said automobiles, and the defendant directed the route of travel of said funeral procession from its said place of business to Cedar Hill Cemetery within the City of Bessemer, where said funeral service was to have been concluded. And plaintiff further avers that said route of travel was along Ninth Street, otherwise known as Tuscaloosa Road, where said street crosses or intersects with U. S. Highway No. 11; and said defendant at said time and for many years prior thereto knew that said Ninth Street and Ninth Avenue, in the City of Bessemer, was a dangerous intersection, and knew that traffic upon Ninth Avenue in the City of Bessemer, being the same public highway as U. S. Highway No. 11, was one of the most frequently travelled highways in the State of Alabama, and in the City of Bessemer, and knew that U. S. Highway No. 11 was a thoroughfare and was protected at the said intersection by a stop sign, and knew or should have known by the exercise of reasonable care, that many collisions had occurred at said intersection shortly prior to May 26, 1956, and knew that it was dangerous to direct a funeral procession on and along said Ninth Street at its intersection with said U. S. Highway No. 11; in the City of Bessemer, Alabama. That at said time and place said funeral procession was not protected by a police escort and that no method or means were used to warn traffic travelling upon U. S. Highway No. 11, of the presence of the funeral procession, or to otherwise protect said funeral procession from traffic travelling on or along said Ninth Avenue, which said funeral procession included the automobile in which plaintiff was an invited guest.

'Plaintiff further avers that the defendant having undertaken to direct the aforementioned funeral procession as aforesaid, negligently failed to provide safe passage to the plaintiff and other members in said funeral procession and did not provide an escort or other means of protection to the guests in said funeral procession and did not provide an escort or other means of protection to the guests in said funeral procession, including the plaintiff; and in entire disregard of its duty to furnish safe passage to the plaintiff, led said funeral procession on and along Ninth Street, a public highway in the City of Bessemer into and over the intersection of Ninth Avenue, U. S. Highway No. 11, a public highway in the City of Bessemer without warning the plaintiff of the danger of being struck by vehicles travelling on or along said Ninth Avenue and without making any effort to warn approaching vehicles travelling on or along Ninth Avenue of the presence of the funeral procession at said time and place in which plaintiff was a guest passenger.

'Plaintiff further avers that he received all of his said injuries and damages catalogued in the foregoing part of this complaint and as a proximate result of the negligence of the defendant in failing and neglecting to protect and safeguard said funeral procession in which plaintiff was riding as a passenger, as aforesaid.'

The following are grounds of demurrer assigned to the complaint.

'1. For that it does not appear therefrom that the defendant owed to the plaintiff any duty on the occasion complained of.

'2. For that it does not appear therefrom that the defendant breached any duty owing to the plaintiff.

'6. For that it appears therefrom that the defendant had no power as such to furnish a police escort.

'12. For that it does not appear therefrom that the defendant was under any duty to the plaintiff to protect plaintiff from being struck by vehicles traveling upon Ninth Avenue (U. S. Highway 11).

'13. For that when construed against the pleader it appears that the defendant did not undertake to direct the automobile in which the plaintiff was riding across said Ninth Avenue nor to protect the same from the danger of being struck by other vehicles traveling upon said Ninth Avenue but left to the operator of said vehicle in which said plaintiff was riding the full control of the operation of his vehicle upon or across said highway.

'14. For that the averment thereof that the defendant undertook to direct the aforementioned funeral procession is but the unauthorized conclusion of the pleader, unsupported by a sufficient averment of facts to warrant the conclusion.

'16. For that the mere fact that the defendant led said funeral procession did not place upon it the duty to provide protection from vehicles upon that Ninth Avenue as the automobiles in said funeral procession crossed said Avenue.

'17. For that the averment thereof that the defendant negligently failed to provide safe passage to the plaintiff and other members in said funeral procession is but the unauthorized conclusion of the pleader, unsupported by a sufficient averment of facts to warrant the conclusion.

'18. For that the averment thereof that the defendant negligently failed to provide safe passage to the plaintiff and other members in said funeral procession and in an entire disregard of its duty to furnish safe passage to the plaintiff, led said funeral procession on and along Ninth Avenue and over the said Ninth Avenue is but the unauthorized, conclusion of the pleader, unsupported by a sufficient averments of facts to warrant the conclusion.

'19. For that the averment thereof that it was the duty of the defendant to furnish safe passage to the plaintiff over such said Avenue is but the unauthorized conclusion of the pleader, unsupported by a sufficient averment of facts to warrant the conclusion.

'20. For that the allegation that it was the duty of the defendant to furnish safe passage to the plaintiff on said occasion imposes a duty higher than that imposed by law.

'21. For that the plaintiff seeks to impose upon the defendant a duty higher than that imposed by law.

'26. For that there is no duty upon a funeral director to provide protection for vehicles in a funeral procession.

'27. For that the mere fact that a funeral director leads a funeral procession from the place of the funeral service to the cemetery does not impose upon such funeral director the duty to protect the vehicles in such funeral procession from other vehicles that may be met upon the streets traveled or crossed by the funeral procession in going to such place of burial.'

MERRILL, Justice.

Appellant, plaintiff below, appeals from a judgment of involuntary nonsuit after an adverse ruling of the court in sustaining demurrers of appellee, defendant below, to each count of the complaint, as amended. The amended complaint consisted of three counts, styled Counts One and Two and Count A. Count One is in negligence and Count Two is for the breach of an implied contract. Count A is substantially the same as Count One, and appellant asserts in brief that it is this count in which he places the greatest reliance. The reporter will set out Count A and grounds of demurrer 1, 2, 6, 12, 13, 14, 16-21, 26 and 27 in the report of the case.

Appellant states in brief that the gravamen of the complaint is the undertaking by the funeral...