Graham v. Werfel

• Decision Date: 11 October 1934
• Docket Number: 3 Div. 110.
• Citation: 229 Ala. 385,157 So. 201
• Parties: GRAHAM v. WERFEL.
• Court: Alabama Supreme Court

157 So. 201

229 Ala. 385

GRAHAM v. WERFEL.

3 Div. 110.

Supreme Court of Alabama

October 11, 1934

Rehearing Denied Nov. 8, 1934.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages for personal injuries by Joseph Werfel, a minor suing by his next friend, Jacob Werfel, against W. E. Graham. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

Count alleging that plaintiff was crossing certain public street at or near intersection, and that defendant's employee while acting within scope of employment, negligently drove automobile against plaintiff, and injured plaintiff, held not demurrable on ground that it did not appear that any duty was owing by defendant to plaintiff.

The complaint is as follows:

"1. The plaintiff, Joseph Werfel, a minor, suing by his father and next friend, Jacob Werfel, claims of the defendant Fifteen Thousand ($15,000.00) Dollars as damages for that on, to-wit, the 27th day of June, 1933, the plaintiff was crossing South Perry Street, a public street in the City and County of Montgomery, Alabama, at or near its intersection with Jefferson Davis Avenue, and then and there the agent, servant or employee of the defendant, while acting within the line or scope of his employment, negligently drove an automobile into, over or against the plaintiff, and by reason thereof and as a proximate result and consequence thereof the plaintiff received severe personal injuries in this, to-wit: His skull was fractured in two places; his jaw was fractured; he was made sick, sore and lame; he was bruised and lacerated; he was cut and scarred over his eye; his eyes were injured; he was internally injured; he was permanently injured; he suffered and continues to suffer great mental anguish and physical pain, for all of which he claims damages as aforesaid; hence this suit.

"2. The plaintiff, Joseph Werfel, a minor, suing by his father and next friend, Jacob Werfel, claims of the defendant Fifteen Thousand ($15,000.00) Dollars as damages for that on, to-wit, the 27th day of June, 1933, the plaintiff was crossing South Perry Street, a public street in the City and County of Montgomery, Alabama, at or near its intersection with Jefferson Davis Avenue, and then and there the agent, servant or employee of the defendant, while acting within the line or scope of his employment, wilfully or wantonly drove an automobile into, upon, over or against the plaintiff, and by reason thereof and as a proximate result and consequence thereof, the plaintiff received severe personal injuries in this, to-wit: His skull was fractured in two places; his jaw was fractured; he was made sick, sore and lame; he was bruised and lacerated; he was cut and scarred over his eye; his eyes were injured; he was internally injured; he was permanently injured; he suffered and continues to suffer great mental anguish and physical pain, for all of which he claims damages as aforesaid; hence this suit."

Defendant demurred to each count, separately and severally, upon the following grounds:

"1. The count fails to state a cause of action.

"2. It does not sufficiently appear from said count that defendant owed any duty to plaintiff which the defendant negligently failed to perform, or which his agent negligently failed to perform.

"3. The count fails to aver or to show that plaintiff's alleged injuries were the proximate consequence of defendant's alleged negligence, or of the negligence of defendant's agent.

"4. The count fails to aver or to show sufficient causal connection between defendant's alleged breach of duty and plaintiff's injuries and damages.

"5. The facts averred do not show wilful or wanton conduct on the part of defendant, his agent or servant.

"6. The count fails to aver sufficient facts to constitute wilful or wanton conduct.

"7. The wilful or wanton conduct is averred in said count as the mere conclusion of the pleader without a sufficient averment of facts to support it.

"8. The averment in said count of wilful or wanton conduct characterizes the act and not the injury as wilful or wanton.

"9. The count fails to aver or to show that defendant's agent was conscious at the time that his conduct would probably result in injury to the plaintiff."

These charges, requested by defendant, were refused:

"31. The court charges that wilful or wanton misconduct in doing an act is not the legal equivalent of that character of misconduct inflicting an injury upon another."

"33. The court charges that if, after a consideration of all the evidence in the case, you should determine to award the plaintiff damages under count 2, such damages are solely by way of punishment, and you have the right to take into consideration all the facts and circumstances surrounding the accident, the speed of the car, the conduct of the driver of the car, the conduct of the plaintiff on the occasion complained of, in determining whether a large or small fine shall be assessed against the defendant."

John S. Tilley, of Montgomery, for appellant.

Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

FOSTER Justice.

Count 1 of the complaint shows a duty owing by defendant to plaintiff, and alleges a negligent breach of that duty, from which plaintiff was injured as a proximate result.

It was not subject to the demurrer interposed to it. Dozier v. Woods, 190 Ala. 279, 67 So. 283; Maddox v. Jones, 205 Ala. 598, 89 So. 38; Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556; Strickland v. Davis, 221 Ala. 247, 128 So. 233; Ruffin C. & T. Co. v. Rich, 214 Ala. 633, 108 So. 596; Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779.

Count 2 alleges a direct wanton or willful injury to plaintiff by express terms, and is not dependent upon the claim of a consequential injury resulting from a wanton or willful act not sufficiently related to the injury. The demurrer to it was overruled without error. Buffalo Rock Co. v. Davis, supra; Caruth v. Sparkman, 226 Ala. 594, 147 So. 884; Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165; Byram & Co. v. Bryan, 224 Ala. 466, 140 So. 768; Harrison v. Formby, 225 Ala. 260, 142 So. 572.

The accident occurred as plaintiff, a boy then past thirteen years, was crossing South Perry street, in the city of Montgomery, near the intersection of Jefferson Davis avenue. The father, mother, and brother, with plaintiff, had traversed Jefferson Davis avenue going west. As that street crosses Perry, there is an offset, so that west of Perry the intersection is approximately one hundred feet south of the intersection east of Perry. One crossing Perry on Jefferson Davis does not have distinctly marked in the street any definite course, nor was an ordinance shown fixing the manner of making the crossing. It was shown to be customary to make a diagonal crossing in a southwesterly direction from approximately the southeast corner on the east side to the northwest corner on the west side of Perry. That was shown to have been the course of travel pursued by the family of plaintiff on this occasion.

The evidence for plaintiff tended to show that before undertaking...