Harrison v. Formby

• Citation: 142 So. 572,225 Ala. 260
• Decision Date: 26 May 1932
• Docket Number: 6 Div. 135.
• Parties: HARRISON v. FORMBY ET AL.
• Court: Supreme Court of Alabama

142 So. 572

225 Ala. 260

HARRISON v. FORMBY ET AL.

6 Div. 135.

Supreme Court of Alabama

May 26, 1932

Rehearing Denied June 18, 1932.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages for personal injuries by John Harrison, a minor suing by his next friend, William M. Harrison, against T. H Formby and B. E. Formby. From a judgment for defendants plaintiff appeals.

Affirmed.

Fort Beddow & Ray and G. Ernest Jones, all of Birmingham, for appellant.

London, Yancey & Brower and J. Kirkman Jackson, all of Birmingham, for appellees.

KNIGHT J.

The only question presented for review here is whether or not the court below properly sustained the defendants' demurrer to count B of the complaint as amended.

While it does not appear from any paper filed in the cause that defendants refiled to count B of the complaint as amended the demurrers theretofore filed by them to counts 1 and 2, yet the record shows that the parties in the court below treated the demurrers as refiled to count B of the complaint as amended, and the judgment entry recites: "Plaintiff by leave of the court amends his complaint by filing counts A and B; defendants separately and severally refile all demurrers heretofore filed to counts A and B of the complaint as amended." And the judgment further shows a submission upon the demurrers to counts A and B, and the overruling of the same as to count A, and the sustaining of the same as to count B. It thus appears that the parties and the court treated the demurrers as refiled to count B, and we shall so consider them here.

We find in brief of appellant this expression: "If the court's ruling sustaining demurrers to count B of the complaint as amended was correct, then this appeal must fail. If the court's ruling was incorrect, then this appeal must prevail."

The suit is against the appellees (defendants in the court below) for an alleged wanton wrong committed by their servant, while acting within the line and scope of his authority as such, whereby, and as a proximate consequence of which, the plaintiff alleges that he suffered the personal injuries catalogued in his complaint. The defendants, upon a number of grounds, demurred to count B of the amended complaint. The sixth and seventh grounds of demurrer are as follows:

"6. For that it does not appear that the defendants wantonly injured plaintiff;"

"7. For that no facts are set up showing that defendant wantonly injured the plaintiff."

Count B of the complaint, as amended, appears in the report of the case, but with the injuries catalogued omitted. It will be observed that the plaintiff charges that the agent, servant, or employee of the defendants, while acting within the line and scope of his authority, "wantonly caused or wantonly allowed" an automobile truck which he was driving for defendants to run upon or against an automobile in which plaintiff was riding; and the plaintiff avers that his injuries were the proximate result of the wanton conduct of said servant, in that the said servant or agent, while acting within the line and scope of his authority, did "wantonly cause or wantonly allow an automobile truck to collide with an automobile in which plaintiff was riding, thereby proximately causing the injuries and damages complained of."

We think it clear, from the foregoing statement as to the averments of count B, that the count was subject to the demurrer interposed, and the court committed no error in sustaining the same.

In the case of Woodward Iron Co. et al. v. Finley, 189 Ala 634, 66 So. 587, it is said of a count very much like the count under consideration: "Under the authority of So. Ry. Co. v. Weatherlow, 153 Ala. 171, 176, 44 So. 1019; Neyman v. A. G. S. R. Co., 172 Ala. 606, 55 So. 509, Ann....