Kingry v. McCardle, 4 Div. 857

• Citation: 266 Ala. 533,98 So.2d 44
• Decision Date: 31 October 1957
• Docket Number: 4 Div. 857
• Parties: W. C. KINGRY v. Myrtle McCARDLE.
• Court: Supreme Court of Alabama

Page 44

98 So.2d 44

266 Ala. 533

W. C. KINGRY v. Myrtle McCARDLE.

4 Div. 857.

Supreme Court of Alabama.

Oct. 31, 1957.

L. A. Farmer, Jr., and L. A. Farmer, Dothan, for appellant.

W. G. Hardwick, Dothan, for appellee.

LIVINGSTON, Chief Justice.

This is an action to recover damages for personal injuries received in an automobile collision. The defendant filed pleas of contributory negligence and recoupment, and sought to recover for damages sustained in the same automobile collision. The suit, tried before the Circuit Court of Houston County, Alabama, resulted in a general verdict for the plaintiff and damages were awarded in the sum of $8,500. From this judgment, the defendant has now duly appealed.

The complaint, consisting of two counts, is in pertinent part, as follows:

Count 1. 'The Plaintiff claims of the Defendant Twenty Thousand & 00/100 ($20,000.00) Dollars, damages for that heretofore, to wit, on July 10, 1954, the Defendant was driving an automobile upon a public highway, in Houston County, Alabama, leading from Taylor to Rehobeth and at a point on said highway about 1 mile south of Taylor the Defendant so negligently operated said automobile then and there that as a proximate result and consequence thereof, he ran the same upon and against a pick up truck in which the Plaintiff was riding and inflicted injuries upon her in this * * *.

Count 2. 'The Plaintiff claims of the Defendant Twenty Thousand & 00/100 ($20,000.00) Dollars, as damages for that heretofore on, to-wit July 10, 1954, in Houston County, Alabama, the Plaintiff was riding in a pick up truck upon a public highway leading from Taylor, Alabama, to Rehobeth, Alabama, at a point approximately 1 mile south of Taylor, Alabama, and then and there the Defendant wilfully or wantonly ran an automobile into, upon or against the pick up truck in which the Plaintiff was riding, and thereby and as a proximate consequence thereof the Plaintiff received personal injuries in this, to-wit * * *.'

The appellant's assignments of error (1) and (2) are predicated on the overruling of the demurrers to Counts 1 and 2.

It is argued by the appellant that Count 1 of the complaint, attempting to aver simple negligence, is defective because it fails to show that there was a duty owed by the appellant to the appellee. His contention is that 'then and there' as used in Count 1 characterizes the act of negligence, and not that the accident occurred upon a public highway. It is his insistence that there is no allegation that the plaintiff was on the public highway at the time of the collision.

Though it is undoubtedly true that pleading is to be construed most strongly against the pleader, there should not be a strained and unnatural construction of the language used. The count as a whole should be considered, and the words used should be given a reasonable construction. Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 622, 108 So. 600; Louisville & N. R. Co. v. Cunningham Hardware Co., 213 Ala. 252, 104 So. 433; Street v. Treadwell, 203 Ala. 68, 82 So. 28; Slight v. Frix, 165 Ala. 230, 51 So. 601.

It was alleged that the appellant was 'driving an automobile upon the public highway,' and there was a sufficient averment in Count 1 to show that the collision had taken place upon the highway. That is a sufficient allegation to show that the appellee was not a trespasser, and was at a place where the appellant owed him a duty. Ruffin Coal & Transfer Co. v. Rich, supra; Tillery v. Walker, 216 Ala. 676, 114 So. 137; Plylar v. Jones, 207 Ala. 372, 92 So. 445. 'The substantive law of torts in this state would subject a defendant to liability if by his simple negligence he injures anyone * * * when on a public highway * * *.' Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541, 542.

From the view we take of the case, it will not be necessary to consider if the overruling of appellant's demurrer to Count (2), which charged the defendant with willful and wanton conduct, was erroneous. The appellant has also assigned as error the failure of the trial judge to give the affirmative charge in favor of the appellant under Count (2) of the complaint.

An examination of the evidence presented in the case clearly reveals that there was insufficient evidence to support Count (2) of the complaint, and to that extent the appellant was entitled to the affirmative charge.

Admitting that the overruling of the demurrer to Count (2), and the failure to give the affirmative charge to such count of the complaint was error, the crucial problem remains: Were these reversible errors, or errors without injury?

There were no written charges given to the jury, and an examination of the court's oral charge reveals that they were in no way instructed as to willful or wanton conduct, or as to the damages arising from such conduct.

In the case of Putman v. White, 18 Ala. App. 15, 88 So. 355, 357, as in this case, there was one count charging simple negligence, and a second count charging willful or wanton misconduct. The demurrer to the second count charging willful or wanton misconduct was erroneously overruled. The court in holding that it was error without injury stated 'The overruling, however, of the demurrers to count 2, appears not to have worked harm or injury to the appellant, for the trial court charged the jury that the defendant was required to exercise ordinary care and prudence in watching the barn, or in putting out the fire to prevent setting the barn on fire, and, in case they should find for the plaintiff, the measure of damages would be the reasonable and fair cash market value of the property destroyed from the testimony in the case. The jury was in no wise charged as to punitive damages.'

In the instant case, as the jury was in no way charged as to Count 2 of the complaint, there being no instructions as to wanton conduct or punitive damages, the rulings of the trial court, though error, were error without injury. Putman v. White, supra; Alabama City, G. & A. Ry. Co. v. Lee, 200 Ala. 550, 76 So. 908; Cartwright v. Hughes, 226 Ala. 464, 147 So. 399. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

There is a distinction between the case at bar and such cases as Jordan v. Henderson, 258 Ala. 419, 421, 63...