Louis Pizitz Dry Goods Co. v. Cusimano, 6 Div. 146.

CourtSupreme Court of Alabama
Writing for the CourtMILLER, J.
Citation206 Ala. 689,91 So. 779
PartiesLOUIS PIZITZ DRY GOODS CO. v. CUSIMANO.
Decision Date27 October 1921
Docket Number6 Div. 146.

91 So. 779

206 Ala. 689

LOUIS PIZITZ DRY GOODS CO.
v.
CUSIMANO.

6 Div. 146.

Supreme Court of Alabama

October 27, 1921


Rehearing Denied Nov. 17, 1921.

Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.

Action by Tony Cusimano, by next friend, against the Louis Pizitz Dry Goods Company, a corporation, for damages for personal injuries suffered in an automobile accident. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded. [91 So. 780]

Percy, Benners & Burr and Salem Ford, all of Birmingham, for appellant.

Black, Altman & Harris, of Birmingham, for appellee.

MILLER, J.

Tony Cusimano, a minor, under six years of age, by his next friend, sues Louis Pizitz Dry Goods Company for injuries received from an automobile truck in the public streets of the city of Birmingham, which was being driven by a servant of the defendant.

There are two counts on which the case was submitted to the jury. Defendant pleaded the general issue-not guilty-to each. There was a verdict in favor of plaintiff, judgment thereon by the court, from which the defendant appeals.

The negligence averred in count 2 of the complaint, to which demurrers were assigned by defendant, and overruled by the court, is as follows:

"The defendant's servant, or agent, whose name is to the plaintiff unknown, and while acting in the line and scope of his authority as such servant or agent, negligently caused an automobile to run over, upon, or against plaintiff, upon a public highway in Jefferson county, Ala., and as a proximate result of said negligence plaintiff's leg was broken," etc

The demurrers make the points that the negligence is not set forth, the averments [91 So. 781] are too general, and negligence as a conclusion only is charged.

The count avers plaintiff was upon a public highway. He was therefore not a trespasser. He had a right to be there; so did the defendant with its automobile. Their rights appear equal at this place. Each owed a duty not to negligently injure the other as they used the public highway. Thus the count avers facts showing the duty owed plaintiff by defendant. It avers the defendant's servant while acting in the line and scope of his authority, as such servant, negligently caused an automobile to run over, upon, or against plaintiff upon a public highway in Jefferson county. This avers a negligent breach of that duty owed plaintiff by defendant. The count alleges an injury-plaintiff's leg was broken-and that it was the proximate result of the negligence. Thus we see alleged in the count facts showing the duty, the negligent failure to perform it, and an injury as a proximate consequence thereof. This is all the law required. The demurrers were properly overruled. B'ham. R. L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013; B'ham. E. & B. R. R. Co. v. Feast, 192 Ala. 410, 68 So. 294.

That part of count 3 objected to by demurrer of defendant reads:

"Defendant's servant, or agent, whose name is to the plaintiff unknown, and while acting in the line and scope of authority as such servant or agent, wantonly and willfully injured the plaintiff by causing an automobile to run over upon, or against him, and as a proximate result thereof plaintiff suffered the injuries," etc

This count is almost in the exact words of count 1 in Yarbrough v. Carter, 179 Ala. 356, 60 So. 833, approved by this court. The real difference between the two counts is: The count in this case charges that defendant's servant wantonly and willfully injured plaintiff by causing an automobile to run over, upon, or against him; and the count in that case (179 Ala. 356, 60 So. 833) uses the word "plaintiff" in the place where the word "him" is in this count. This word "him," as and where it is in the sentence, refers, not to the servant, but to the plaintiff. It was intended to mean by that word "him" that plaintiff, and not the servant of defendant, was injured. Then the real meaning of the count must be gathered from reading and considering all of it. We find this additional averment therein on this subject:

"Plaintiff further avers that he was run over, upon, or against on a public highway in the city of Birmingham."

When the count is construed as a whole as it must be, to get its full import, it is easy to determine that the words "him" and "he," as and where used, refer to plaintiff and not to the servant of defendant. It is so construed.

This count charges in substance that plaintiff was wantonly and willfully injured by causing an automobile to run over, upon, or against him; that his leg was broken thereby; and the injury was a proximate result thereof; it was done in a public highway in the city of Birmingham; that defendant's servant did it while acting in the line and scope of his authority. This count is sufficient in its averments to contain a cause of action for willful or wanton injury. Its allegations of facts are brief, and they are presented in an intelligent form so that a material issue can be taken thereon by the defendant. This is what the law requires. No error was committed by overruling the demurrers to it. Yarbrough v. Carter, 179 Ala. 356, 60 So. 833; section 5321, Code 1907.

The defendant requested the general affirmative charge as to each count and that the court charge the jury also as a matter of law that there was no evidence in the case to support a charge of wantonness or willfullness. These three charges were in writing, and each was refused by the court. We have read the evidence. There is positive conflicting testimony, or direct or legitimate conflicting inferences that may be drawn from it, on each issue, which, under the scintilla of evidence rule, is sufficient to carry the case on each count to the jury. This being true, the court did not err in leaving it to them by refusing these charges. Penticost v. Massey, 202 Ala. 681, 81 So. 637; Amerson v. Corona Coal Co., 194 Ala. 175, 69 So. 601; McCormack Harv. Co. v. Lowe, 151 Ala. 313, 44 So. 47.

There are three errors, numbered 3, 4, and 5, assigned and insisted upon by defendant. They are rulings of the court adverse to it on hypothetical questions asked expert witnesses by plaintiff, and refusal by the court to exclude the answer. This court said on this subject:

"The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the sound discretion of the trial court." Burnwell Coal Co. v. Setzer, 191 Ala. 398, 407, 67 So. 604, 607.

The question should be framed on evidence in the case, not necessarily all the evidence, but sufficient for the witness to form an opinion to shed some light on some issue in the case. Each party can propound the question on the testimony in the case, which, if believed by the jury, would tend to establish his theory or conclusion. If one fails to state all necessary facts in the question, the other party on cross-examination can easily supply them and get the opinion of the witness thereon; for these reasons the question in form and substance must rest largely in the sound discretion of the trial court. It will not be put in error, unless this discretion is abused and a party appears [91 So. 782] injured thereby. The questions in this case conformed substantially to the rule, and the discretion was not abused by the court, and we find no error in these rulings. Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; B'ham. R. & E. Co. v. Butler, 135 Ala. 388, 33 So. 33.

The court refused charge No. 13. The defendant claims it was error. It reads:

"I charge you, gentlemen of the jury, that if you believe from the evidence that plaintiff ran from
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38 practice notes
  • J. H. Burton & Sons Co. v. May, 1 Div. 312
    • United States
    • Supreme Court of Alabama
    • January 22, 1925
    ...So. 763; Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Denson v. Acker, 201 Ala. 300, 78 So. 76; Louis Pizitz D.G. Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Hypothetical questions are not objectionable for the omission to hypothesize every fact theretofore shown by the evidence; yet ......
  • Frank v. Greenhall, No. 34902.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1937
    ...235 Mich. 627, 209 N.W. 842; In re Hosmer's Estate, 47 N.D. 147, 196 N.W. 545; Gay v. Gay, 183 Ky. 238, 209 S.W. 11; Johnson v. Johnson, 206 Ala. 689, 91 So. 260; Crocker's Heirs v. Crocker's Heirs, 156 Ark. 309, 246 S.W. 6; Williams v. Fulkes, 103 Ark. 196, 146 S.W. 480; Sanitary Dist. of ......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...The jury was selected under the provisions of sections 8610, 8662, 8663, Code 1928. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 694, 91 So. 779. In Batson v. State ex rel. Davis, Sol., 216 Ala. 275, 280, 113 So. 300, 305, it is declared: "The right of parties to test jurors on the voir......
  • Cox v. Roberts, 6 Div. 390.
    • United States
    • Supreme Court of Alabama
    • October 17, 1946
    ...196 Ala. 67, 71 So. 422; United States C. I. P. & F. Co. v. Warner, 198 Ala. 595, 73 So. 936; Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103; Gammill v. Culverhouse, 217 Ala. 65, 114 So. 800; Cooper v. Auman, 219 Ala. ......
  • Request a trial to view additional results
38 cases
  • J. H. Burton & Sons Co. v. May, 1 Div. 312
    • United States
    • Supreme Court of Alabama
    • January 22, 1925
    ...So. 763; Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Denson v. Acker, 201 Ala. 300, 78 So. 76; Louis Pizitz D.G. Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Hypothetical questions are not objectionable for the omission to hypothesize every fact theretofore shown by the evidence; yet ......
  • Frank v. Greenhall, No. 34902.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1937
    ...235 Mich. 627, 209 N.W. 842; In re Hosmer's Estate, 47 N.D. 147, 196 N.W. 545; Gay v. Gay, 183 Ky. 238, 209 S.W. 11; Johnson v. Johnson, 206 Ala. 689, 91 So. 260; Crocker's Heirs v. Crocker's Heirs, 156 Ark. 309, 246 S.W. 6; Williams v. Fulkes, 103 Ark. 196, 146 S.W. 480; Sanitary Dist. of ......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...The jury was selected under the provisions of sections 8610, 8662, 8663, Code 1928. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 694, 91 So. 779. In Batson v. State ex rel. Davis, Sol., 216 Ala. 275, 280, 113 So. 300, 305, it is declared: "The right of parties to test jurors on the voir......
  • Cox v. Roberts, 6 Div. 390.
    • United States
    • Supreme Court of Alabama
    • October 17, 1946
    ...196 Ala. 67, 71 So. 422; United States C. I. P. & F. Co. v. Warner, 198 Ala. 595, 73 So. 936; Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103; Gammill v. Culverhouse, 217 Ala. 65, 114 So. 800; Cooper v. Auman, 219 Ala. ......
  • Request a trial to view additional results

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