Jenkins v. Mann

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 452.
• Citation: 127 So. 230,220 Ala. 661
• Parties: JENKINS ET AL. v. MANN.
• Court: Alabama Supreme Court

127 So. 230

220 Ala. 661

JENKINS ET AL. v. MANN.

6 Div. 452.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages by Bernice D. Mann, as administratrix of the estate of C. B. Mann, deceased, against J. W. Douglas and R M. Jenkins, trading under the style and firm name of Iron City Lumber Company. From a judgment for plaintiff defendants appeal.

Reversed and remanded.

Verdict for defendant may be directed when evidence does not tend to prove plaintiff's cause of action.

Counts 1 and 3 of the complaint are as follows:

"1. Plaintiff, Bernice D. Mann, who sues as administratrix of the Estate of C. B. Mann, Deceased claims of the defendants the sum of One Hundred Thousand Dollars ($100,000.00) as damages for that heretofore on, to-wit; the 16th day of February, 1927, while plaintiff's intestate was riding in an automobile on a public highway in Shelby County, Alabama on what is known as the Montgomery Highway near Pelham, Alabama, which said automobile was then and there being operated by the Defendants and while plaintiff was riding in said automobile at the invitation of the Defendants, the Defendants did then and there negligently cause or allow the said automobile in which plaintiff's intestate was riding as aforesaid to collide with another automobile upon said highway, whereby and as a proximate consequence of which said negligence of the defendants, the plaintiff's intestate was killed."

"3. Plaintiff, Bernice D. Mann, who sues as the administratrix of the Estate of C. B. Mann, Deceased, claims of the Defendants the sum of One Hundred Thousand Dollars ($100,000.00) as damages for that heretoforeon, to-wit; the 16th day of February, 1927, while plaintiff's intestate was employed by the Defendant, R. M. Jenkins, trading under the style and firm name of Iron City Lumber Company, as a salesman and buyer of lumber and while he was in the discharge of his duties under said employment, being transported in an automobile on a public highway known as the Montgomery Highway at or near Pelham in Shelby County, Alabama, and which said automobile was then and there being used, by said Defendant, the plaintiff's Intestate's employer, in connection with his said business the said automobile was then and there on account of the incompetency of the driver thereof caused to collide with another automobile then and there upon said highway, thereby injuring plaintiff's intestate so that he died.

"And plaintiff avers that the death of her said intestate was proximately caused by reason of the negligence of Defendant, J. W. Douglas, who was a person in the service or employment of the other Defendant and who had superintendence entrusted to him, whilst in the exercise of such superintendence in that he negligently placed in charge of the operation of said automobile said incompetent driver.

"And plaintiff further avers that the said Defendant, R. M. Jenkins, trading under the style and firm name of Iron City Lumber Company, did at and prior to the time of the injury to and death of plaintiff's intestate as aforesaid regularly employ less than sixteen employees in his said business."

Harsh & Harsh, of Birmingham, for appellants.

Mullins & Jenkins, of Birmingham, for appellee.

FOSTER J.

After the complaint had been amended so as to contain three counts, defendants separately filed demurrers "to each count of the complaint as amended separately and severally, and as grounds of demurrer to each of said counts separately and severally assigns thereto the following grounds." The judgment entry recites: "Defendants file demurrers to complaint as amended and said demurrers are by the court heard and considered, whereupon it is ordered and adjudged by the court that said demurrers be and they are hereby overruled."

Appellant has assigned for error the ruling on demurrers to each count of the complaint separately. Appellee contends that the record which we have copied does not show a separate ruling on the separate demurrers to each count, but only to the complaint as a whole. This is upon the authority of Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239, and others following it. The record in that case recited a demurrer to the complaint, and that it is considered, etc., and is overruled. It was said that the record did not show a ruling on demurrer to each count separately. In Central of Ga. v. Ashley, 159 Ala. 145, 48 So. 981; Berger v. Dempster, 204 Ala. 305, 85 So. 392; Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796; Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 28 A. L. R. 461, the court applied the same rule to a record of similar import.

In Liverpool & L. & Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880, 882, the record recited "demurrers to defendant's plea in abatement are by the court," etc., and this court differentiated such recitals from those in the cases just cited, and held that such a record shows a ruling on the demurrers addressed to the several pleas in abatement separately as to each.

In the instant case, the judgment cannot be differentiated from that in the McCree Case, supra, and it sufficiently shows that the separate demurrers to each count were separately overruled.

The only fault pointed out in the first count which seems to need treatment is that, in reciting the invitation to ride, it states that plaintiff was riding at the invitation of defendant, and recites that the negligence was in operating the automobile in which plaintiff's intestate was riding as aforesaid. We think that the context shows a clerical self-correcting omission in not stating that it was plaintiff's intestate who was riding at the invitation of defendants and not plaintiff herself. Clinton Min. Co. v. Bradford, 200 Ala. 308, 76 So. 74; Starr Piano Co. v. Zavelo, 212 Ala. 369, 102 So. 795; Elder v. Ralls Sanitarium, 219 Ala. 298, 122 So. 41. Treating that condition as self-correcting, the count is not subject to the demurrers assigned.

Count 2 was not submitted to the jury.

The sufficiency of count 3 is also tested by the demurrers. That count is treated by counsel as based upon subdivision 2 section 7598, Code, part of the Employers' Liability Act, charging the negligence of a superintendent. The superintendent, as alleged in this count, was the defendant Douglas. So that, treating this count as being a claim under said act, we observe that in it both the employer and his alleged negligent superintendent are united as defendants in the same count. So treated, there is in this count a joinder of separate and distinct causes of action-one against Jenkins under the Employers' Liability Act (Code 1923, §§ 7598-7601), in which the damages are compensatory, and a different one against Douglas under the Homicide Statute (Code 1923, § 5696), in which the damages are punitive. This cannot be done conformably to our decisions construing such nature of actions. Therefore, so treating count 3, it was subject to the demurrer on that ground. Gulf States Steel Co. v. Fail, 201...