Hand v. Butts
| Decision Date | 21 December 1972 |
| Parties | Gloria HAND v. W. L. BUTTS, Jr. SC 36. |
| Court | Alabama Supreme Court |
William W. Smith, Birmingham, for appellant.
Edgar M. Elliott III, and Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
The defendant's demurrer to plaintiff's complaint being sustained, plaintiff took a non suit with leave to appeal, which she timely perfected.
The complaint was in four counts, which are identical except for the dependent allegation of negligence and proximate cause with which each count concludes. We will therefore set out in full only Count I, and will state only the differing quo modos of the alleged negligence with which each count concludes.
'COUNT ONE
'Plaintiff claims of the Defendant Fifty Thousand and No/100 ($50,000.00) Dollars damages for this: Prior to March 1, 1968, the sister of Plaintiff, Norma Dunn, entered into a contract with Defendant to collect and dispose of Defendant's garbage on a regular basis, for a consideration; that Plaintiff's said sister had prior to said date and in accordance with her agreement with Defendant, collected and disposed of Defendant's garbage on a regular basis; that Defendant had requested that the amount due from Defendant to said sister of the Plaintiff for collecting and disposing of Defendant's garbage be collected at Defendant's residence at 329 23rd Ave., N.W., Center Point, Birmingham, Jefferson County, Alabama; that on, to-wit, March 1, 1968, Plaintiff accompanied her said sister at said sister's request to Defendant's residence, as well as the residences of other person, for the purpose of collecting the amount due from Defendant to Plaintiff under said contract and agreement as Defendant had requested; that Plaintiff was employed by her said sister to assist her said sister in collecting the amount due; that while Plaintiff and her said sister were at the residence of Defendant at said time and for said purpose, at Defendant's request, Plaintiff fell on the driveway on Defendant's property and was injured as follows: (We omit the catalog of injuries) Plaintiff alleged that her injuries were the proximate result of the negligence of Defendant in this: Defendant negligently maintained said driveway on his property in an unsafe condition for persons using the same.
'COUNT TWO
'* * * The Defendant failed to use reasonable care in maintaining said driveway in a reasonably safe condition for persons invited by him to use said driveway.
'COUNT THREE
'* * * The Defendant negligently failed to provide a safe place for Plaintiff to go up on (sic) the premises of the Defendant at the request of the Defendant and of her said sister for the purpose of collecting the amount due from the Defendant for the services specified above.
'COUNT FOUR
'* * * The Defendant negligently allowed loose gravel to accumulate on said driveway and as a proximate result and consequence thereof, Plaintiff slipped and fell and suffered the injuries above described.'
A reading of the counts readily shows that the forepart of each count does not attempt to set out wrongful or negligent acts on the part of the defendant, but only allege facts showing that the plaintiff was a business invitee on the premises of the defendant at the time of her injury. Hence the counts aver a relationship out of which a duty arose on defendant's part of exercising reasonable and ordinary care not to injure the plaintiff; or otherwise expressed, the count avers a relationship that would render the defendant liable for simple negligence. Railway Express Agency v. Burns, 255 Ala. 557, 52 So.2d 177.
Every action in tort consists of three elements, (1) the existence of a legal duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damage as a proximate result of that duty. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
The complaint here considered sufficiently avers a relationship between the plaintiff and defendant out of which a duty arose, a breach of that duty, and injury to the plaintiff resulting proximately from such breach of duty. Under such averments negligence may be alleged in general terms. See Ramsey v. Sentell Oil Co., 280 Ala. 475, 195 So.2d 527; Alabama Power Co. v. Owens, 236 Ala. 96, 181 So. 283; Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231; Weston v. National Mfrs. & Stores Corp., 253 Ala. 503, 45 So.2d 459; Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 171 So. 634; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Alabama Great Southern R. Co. v. Clark, 221 Ala. 616, 130 So. 318; Johnson v. Birmingham Ry., Light & Power Co., 149 Ala. 529, 43 So. 33.
It is true that the alleged breach of duty is averred in rather general language, and is but little short of a legal conclusion, yet in Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388, a complaint in all regards of similar import as the present complaint, was held sufficient.
Of course if particular acts are set out as constituting defendant's wrongful conduct without characterizing such acts as being negligently done, then a general concluding averment that the plaintiff's injuries were the proximate result of defendant's negligence is insufficient unless the acts charged to the defendant in themselves show or suggest negligence. Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674; Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469, and authorities cited in each case.
While it was held in Lamson & Sessions Bolt Co., supra, that the court properly overruled the demurrer to the complaint, the judgment was reversed on the basis that the defendant was entitled to its requested...
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