Jones v. Keith

• Decision Date: 14 May 1931
• Docket Number: 6 Div. 620.
• Citation: 134 So. 630,223 Ala. 36
• Parties: JONES v. KEITH.
• Court: Alabama Supreme Court

134 So. 630

223 Ala. 36

JONES v. KEITH.

6 Div. 620.

Supreme Court of Alabama

May 14, 1931

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action for damages for personal injury by H. Lamar Jones against S Palmer Keith. From a judgment for defendant, plaintiff appeals.

Affirmed.

The refusal of requested instructions covered by those given is not error.

Count 2 of the complaint is as follows:

"Second Count: Plaintiff claims of the defendant One Hundred Thousand ($100,000.00) Dollars as damages for that heretofore on, to-wit, February 15, 1929, while defendant [plaintiff] was lawfully upon a public street in Jefferson County, Alabama, to-wit, Valley Road, in or near the City of Fairfield, Alabama, being engaged at the time in coupling or fastening a wrecker to a Dodge Coupe parked against the curbstone of said street, defendant wilfully wantonly or intentionally ran or caused an automobile to run into, upon or against said Dodge Coupe, and by reason and as a proximate consequence of the said wilful, wanton or intentional conduct of defendant as aforesaid, said Dodge Coupe was jammed into or against said wrecker and plaintiff's right leg was thereby caught between said Dodge Coupe and said wrecker and was so mangled as that it had to be amputated above the knee, and plaintiff was thereby made sore and sick and for a long time rendered wholly unable to work and earn money, and was rendered permanently less able to work and earn money, and was put to great expense for medicine and medical care and treatment in and about his efforts to heal and cure his said injuries, and plaintiff suffered and still suffers great mental and physical pain, all to his damage in the sum aforesaid. Hence this suit."

The following charges were given for defendant:

"A-34. The court charges the jury that if you find from the evidence in this case that plaintiff's alleged injuries were treated by Dr. Lester and Dr. Cameron at the instance and request of the insurance Company or its agent and at the instance or request of said insurance Company or its said agent the bill of said two physicians for such services was charged to said Company and it paid or settled said bill with said physicians then plaintiff cannot recover for such doctors bills in this action."

"37. The court charges the jury that if you find from the evidence in this case that the insurance company provided plaintiff with the hospital service in question in this case and paid therefor then the plaintiff cannot recover in this action for such hospital service."

"38. The court charges the jury that if you find from the evidence in this case that the insurance company provided for the plaintiff on the occasion complained of the nurses who nursed him and said company paid therefor then plaintiff cannot recover for such nurse hire in this action."

"39. If you find from the evidence in this case that Plaintiff's employer, Brownell Auto Company, either in person or through its insurance carrier, furnished and paid for the service of the doctors on the occasion complained of then I charge you that plaintiff cannot recover for the doctor's bills so furnished and paid for."

"40. If you find from the evidence in this case that plaintiff's employer, Brownell Auto Company, either in person or by its insurance carrier, furnished and paid for the hospital service to plaintiff on the occasion complained of, then plaintiff cannot recover for such hospital bills in this action."

"41. The court charges the jury that if you find from the evidence in this case that the plaintiff's employer, Brownell Auto Company, in person or through its insurance carrier, provided and paid for the services of the nurses who served plaintiff on the occasion complained of, then plaintiff is not entitled to recover for such nurse hire in this action."

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

Ross, Bumgardner, Ross & Ross and Huey, Welch & Stone, all of Bessemer, for appellee.

THOMAS J.

The suit was for damages for personal injury; went to the jury on count 1, and judgment was for the defendant. The defendant pleaded the general issue, in short by consent. Demurrer was sustained to the wanton count No. 2. There was motion for a new trial that was overruled.

The difference between simple negligence and wantonness as a proximate cause of injury is well understood. If there was evidence to sustain a count based on the latter theory, a verdict and judgment for defendant on the simple negligence count did not correct error, if such there was, in sustaining demurrers to a sufficient wanton count. Culverhouse v. Gammill, 217 Ala. 137, 115 So. 105; Sington v. B. R., L. & P. Co., 200 Ala. 282, 283, 76 So. 48; McNeil v. Munson S. S. Lines, 184 Ala. 420, 63 So. 992.

Conceding, without deciding, that the count was sufficient in law and not subject to demurrer (Feore v. Trammel, 212 Ala. 325, 102 So. 529) otherwise than as to the "place where," the question therefore recurs, Was the place of the accident sufficiently declared? Western Railway of Alabama v. Turner, 170 Ala. 643, 54 So. 527. The lack of sufficient averment as to this fact is challenged by appropriate grounds of demurrer. The authorities are collected and reviewed in Bugg v. Green, 215 Ala. 343, 110 So. 718, as to the sufficiency of a count claiming damages for the killing of stock, and required certainty "as to place" in order to give the required information to the defendant to enable a proper preparation for the defense. Louisville & N. R. Co. v. Whitley, 213 Ala. 525, 105 So. 661; Western Railway of Ala. v. Turner, supra; Alabama Great Southern R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125; Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L. R. A. (N. S.) 1106; Posey v. Hair, 12 Ala. 567.

In the case at bar the only allegation of "place where" is "on a public street in Jefferson county, Ala., to-wit, Valley Road, in or near the City of Fairfield."

The suit in Ruffin Coal & T. Co. v. Rich, 214 Ala. 622, 108 So. 600, 602, was for personal injury, and the declaration employed as to the place where was "along Second avenue, at or near Fourth street, in the city of Birmingham," which was held sufficient. Birmingham Railway, Light & Power Co. v. Moore, 148 Ala. 115, 42 So. 1024; Birmingham Railway, Light & Power Co. v. Fox, 174 Ala. 657, 666, 56 So. 1013; Armstrong, Adm'x, v. Montgomery Street Ry. Co., 123 Ala. 233, 26 So. 349; Liverett v. Nashville, Chattanooga & St. L. Ry., 186 Ala. 111, 65 So. 54.

Though count 2 charged wantonness in the manner done, the place where was unimportant as judging defendant's conduct as is set up. The demurrer was not properly sustained; the complaint was not subject to objection of uncertainty in this respect. The other grounds of demurrer worthy of consideration are:

"For that wilful, wanton or intentional conduct is alleged therein as the mere conclusion of the pleader unsupported by a sufficient statement of facts to warrant the conclusion."

"For that it is not made to appear therefrom that defendant, in the acts of his that are complained of, was conscious of the probable peril of plaintiff and that defendant's said acts could and probably would result in injury to plaintiff."

In Southern Railway Co. v. Weatherlow, 153 Ala. 171, 176, 44 So. 1019, 1021, the court said: "The charge is, not that the injury was wantonly inflicted, but that the defendant's servants 'wantonly and recklessly propelled its said engine and tender on its track over a certain public crossing or street,' etc. It omits to charge knowledge on the part of the defendant's servants of the conditions and surroundings existing at the time and place, and a consciousness on their part that such conduct would likely or probably result in injury. The facts stated constituted the count nothing more than a count in simple negligence. Lee's Case, 92 Ala. 262, 9 So. 230; Anchors' Case, 114 Ala. 492, 22 So. 279, 62 Am. St. Rep. 116; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 23 So. 231; L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; L. & N. R. R. Co. v. Mitchell, 134 Ala. 261, 32 So. 735."

And in Woodward Iron Co. v. Finley, 189 Ala. 634, 636, 66 So. 587, is the declaration: "Under the authority of Sou. Ry. Co. v. Weatherlow, 153 Ala. 171, 176, 44 So. 1019; Neyman v. A. G. S. R. R. Co., 172 Ala. 606, 55 So. 509, Ann. Cas. 1913E, 232; B. R., L. & P. Co. v. Brown, 150 Ala. 327, 43 So. 342, among others cited therein, count 5 of this complaint, which the reporter will set out, was subject to the demurrer interposed. It was erroneously overruled. Wanton or intentional misconduct in doing an act is not the legal equivalent of that character of misconduct inflicting an injury upon another. This count, without averring the engineer's knowledge that plaintiff, a licensee, was on the car, alleges that the engineer 'wantonly, or willfully, or intentionally wrecked and derailed said tram cars upon which plaintiff was riding into the said mine.' Obviously, this averment characterized the act, not the injury, as wanton or willful."

In Alabama Great Southern Railroad Co. v. Smith, 191 Ala. 643, 644, 68 So. 56, 57, the court said: "The averments of the count only characterizes the act or omission, 'causing or permitting a collision,' as willful or wanton, and then describes the effect of the act or omission, which alone is characterized as having been done or suffered willfully or wantonly. This effect may have ensued, as doubtless it did, from the act or omission of the character the pleader avers, and yet the operative so...