Laning v. C.R. Crim Bldg. Co., 6 Div. 539

• Decision Date: 21 May 1953
• Docket Number: 6 Div. 539
• Parties: LANING v. C. R. CRIM BLDG. CO., Inc. et al.
• Court: Alabama Supreme Court

Page 121

66 So.2d 121

259 Ala. 268

LANING v. C. R. CRIM BLDG. CO., Inc. et al.

6 Div. 539.

Supreme Court of Alabama.

May 21, 1953.

Rehearing Denied June 30, 1953.

Hogan & Callaway, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville and Jackson, Rives, Pettus & Peterson, all of Birmingham, for appellees.

LAWSON, Justice.

This is a personal injury action by Davidson Lynn Laning, a minor three years of age, who sues by his mother and next friend, Gertrude D. Laning, against C. R. Crim, C. R. Crim Building Company, Inc., and Seale Lumber Company, Inc.

The complaint as last amended included two counts, numbered 5 and 6. Demurrers of the defendants having been sustained to both counts, the plaintiff took a nonsuit and has appealed as authorized by statute. § 819, Title 7, Code 1940.

Plaintiff below, appellant here, separately assigns as error the action of the trial court in sustaining demurrer to each count.

The plaintiff seeks to bring his case within some permissible application of the doctrine of the so-called 'turntable' or 'attractive nuisance' cases. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Union Pacific R. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; Clover Creamery Co. v. Diehl, 183 Ala. 429, 63 So. 196; Alabama G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561.

The plaintiff received injuries to his hand when a concrete block fell on it from a stack of such blocks, on which plaintiff was playing. The concrete blocks had been stacked by defendants on a lot on which they were engaged in the construction of a home. The lot where the blocks were stacked was 'partially adjacent to the lot on which plaintiff's home rested.'

Counts 5 and 6 are identical except that plaintiff has attached to Count 6 several photographs or pictures of the stack of concrete blocks, with the averment that they show the condition of the stack of blocks immediately after plaintiff was injured.

These photographs, in our opinion, add nothing to complaint's case and would have been subject to motion to strike. We are in accord with the views expressed by the Supreme Court of Florida in the case of Perkins v. Morgan Lumber Co., 68 Fla. 503, 67 So. 126, 129, in upholding the action of the trial court in striking from a declaration photographs of the scene of an accident which plaintiff had attached as exhibits. The Florida court said:

'* * * At best, these photos may have become evidence at the trial of the cause if properly identified and shown to be pertinent to any issue in the cause, but to permit them to be interjected into the case as part of the plaintiff's initial pleading was nothing more than an attempt on the plaintiff's part to plead his evidence, and thus to get it before the jury without the precedent step of proper identification and authentication by the oath of some witness subject to cross-examination. It is contrary to all established rules for a party to plead his evidence in a cause; particularly so when, to become admissible as evidence, the matter so pleaded requires identification and authentication by some witness under oath and subject to cross-examination.'

Although no motion to strike was made in this case by the defendants, we will treat the photographs as surplusage.

Aside from the facts already stated, the sum and substance of Counts 5 and 6 is this: The concrete blocks were unevenly stacked to a great height in a manner extremely dangerous to plaintiff and other...