Louis Pizitz Dry Goods Co. v. Cusimano

• Decision Date: 27 October 1921
• Docket Number: 6 Div. 146.
• Citation: 206 Ala. 689,91 So. 779
• Parties: LOUIS PIZITZ DRY GOODS CO. v. CUSIMANO.
• Court: Alabama Supreme Court

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.

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 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 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 a place of safety on the side of the public highway, immediately into the path of the automobile driven by the defendant's agent and in such close proximity to the automobile that defendant's agent by the use of reasonable care and all the means at his command could not avoid the collision and the consequent accident, then I charge you that the defendant would be entitled to a verdict at your hands."

The speed of the automobile under the evidence varied in the estimates from 10 to 35 miles per hour; hence this charge improperly assumes that the defendant's servant was using reasonable care and all means at his command to avoid the injury. It does not state if the jury believe the action of the child was the sole cause of the injury. It fails to state if the jury believe from the evidence that the defendant's servant was guilty of no precious negligence that might have contributed as a proximate consequence to the injury. The defendant's servant may have been driving the car so negligently, when the child ran in front of it, that the injury could not have been avoided, and he would have thereby contributed proximately to it. For these reasons this charge was properly refused.

This charge, No. 22, was asked in writing by the defendant, and refused by the court:

"The court charges the jury that if you are reasonably satisfied from the evidence in this case that plaintiff ran suddenly into the path of defendant's automobile, and that his running into the path of the automobile was unexpected to defendant's servant or agent in charge of said automobile, and that reasonable foresight would not have caused defendant's servant or agent, in the exercise of reasonable prudence, to foresee that the plaintiff would suddenly run into the path of the automobile which he was driving, and if you further believe from the evidence that the plaintiff ran suddenly into the path of the automobile in such close proximity thereto as that defendant's servant or agent could not avoid striking him, then your verdict should be for the defendant."

It contains faults similar to those in charge No. 13. It fails to state if the jury believe from the evidence that defendan...