Gilbert v. Louis Pizitz Dry Goods Co.

• Decision Date: 12 January 1939
• Docket Number: 6 Div. 392.
• Citation: 186 So. 179,237 Ala. 249
• Parties: GILBERT v LOUIS PIZITZ DRY GOODS CO.
• Court: Alabama Supreme Court

186 So. 179

237 Ala. 249

GILBERT v LOUIS PIZITZ DRY GOODS CO.

6 Div. 392.

Supreme Court of Alabama

January 12, 1939

Rehearing Denied Feb. 9, 1939.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by Kathryn S. Gilbert against Louis Pizitz Dry Goods Company. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Averments of complaint will be construed most strongly against pleader on demurrer.

The amended complaint is as follows:

"Count A. Plaintiff claims of the defendant the sum of thirty thousand dollars ($30,000.00) as damages, for that on and prior to to-wit, the 2nd day of July, 1936, the defendant operated what is commonly known as a department store in the City of Birmingham, Jefferson County, Alabama, in which among other things, the defendant operated an optical department where for a valuable consideration the defendant examined the eyes of its customers, fitted glasses to the eyes of its customers, and sold the glasses so fitted to said customers, and plaintiff avers that on to-wit, the 2nd day of July, 1936, plaintiff was a customer in the optical department of defendant's said store, maintained by defendant as aforesaid, and on to-wit, said date for a valuable consideration paid by the plaintiff to the defendant, the servants, agents or employes of the defendant, acting within the line and scope of their employment as such servants, agents or employes of the defendant at said time and place, examined the plaintiff's eyes, fitted glasses to plaintiff's eyes and sold to the plaintiff the glasses so fitted to her eyes.

"And plaintiff avers that the said servants, agents or employes of the defendant acting within the line and scope of their employment as such, so negligently examined plaintiff's eyes, and so negligently fitted said glasses to plaintiff's eyes, on said occasion that plaintiff while walking down the steps to her home on to-wit, the 17th day of September, 1936, was by reason of said glasses being improperly fitted to her eyes as aforesaid, unable to gauge the distance on said steps and as a proximate consequence thereof she fell and was injured and damaged as follows: ***

"And plaintiff avers that all of her said injuries and damages were caused as a proximate consequence of the aforesaid negligence of the said servants, agents or employes of the defendant, acting within the line and scope of their employment as such, in examining plaintiff's eyes and fitting glasses to plaintiff's eyes on the occasion aforesaid.

"Count B. For this count of her complaint plaintiff adopts all of the words and figures of Count A from its beginning down to and including the words 'fitted glasses to plaintiff's eyes and sold to the plaintiff the glasses so fitted to her eyes,' where said words first appear together in said Count A, and adds thereto for this count of her complaint the following:

"And plaintiff avers that at said time and on said occasion the defendant warranted in law that said glasses were properly fitted to plaintiff's eyes and that said

glasses were fit and proper to be used and worn by the plaintiff in walking.

"And plaintiff avers that said glasses were not in fact properly fitted to plaintiff's eyes and were not in fact fit and proper to be used and worn by the plaintiff in walking, and as a proximate consequence of said breach of said warranty plaintiff while walking down the steps to her home on to-wit, the 17th day of September, 1936, was caused to fall and as a proximate consequence thereof she was injured and damaged as complained of and set out in Count A of her complaint."

Taylor & Higgins and Waldrop Windham, all of Birmingham, for appellant.

Coleman, Spain, Stewart & Davies and H. H. Grooms, all of Birmingham, for appellee.

THOMAS Justice.

The Court sustained demurrers to Counts A and B. The plaintiff took an involuntary nonsuit and moved the Court for an order accordingly.

There are several grounds of demurrer. Some of them set up new matter in defense or avoidance, and for this reason were speaking demurrers. Mutual Building & Loan Ass'n v. Moore, 232 Ala. 488, 494, 169 So. 1; Maulitz v. Jones, 222 Ala. 609, 133 So. 701; Webb v. J. R. Lowe & Co., 215 Ala. 552, 112 So. 138; 49 C.J. page 423, § 536.

It is declared by this Court, that when a buyer makes known to the seller the particular purpose for which the goods, articles, or machinery are required, and relies upon the seller's skill and judgment as to the stated quality, end and purpose for which they are intended, there arises an implied warranty that the same are reasonably fit for such purpose--a fact and result known to both parties. Sudduth v. Holloway, 212 Ala. 24, 101 So. 733; Troy Grocery Company v. Potter & Wrightington, 139 Ala. 359, 36 So. 12; Creamery Package Mfg. Co. v. Fields, 235 Ala. 602, 180 So. 275; Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454; Alabama Machinery & Supply Co. v. Caffey; 213 Ala. 260, 104 So. 509.

The pertinent provisions of the Act of 1931, General Acts 1931, page 574, Section 15, Subsections (1) and (6), are: "(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. *** (6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith."

The rules of good pleading are well stated in our decisions. In Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933, the authorities are collected to the effect, that when the facts averred show a relation between the parties out of which the duty in the premises arises, it is sufficient to charge the negligent failure of duty in general terms. Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474; Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237; Demopolis Telephone Co. v. Hood, 212 Ala. 216, 102 So. 35; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Allison Coal & Transfer Co. v. Davis, 221 Ala. 334, 129 So. 9; Townsend v. Adair, 223 Ala. 150, 134 So. 637; Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556.

In every count grounded on negligence, the three essentials of such averment are: (1) a duty owing as between the parties; (2) a breach of that duty; and (3) injury to plaintiff in consequence of that breach. Tennessee Coal, Iron & R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Sloss-Sheffield Steel & Iron Co., v. Weir, 179 Ala. 227, 60 So. 851.

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