Loy v. Reid

• Decision Date: 04 June 1914
• Docket Number: 481
• Citation: 11 Ala.App. 231,65 So. 855
• Parties: LOY v. REID.
• Court: Alabama Court of Appeals

65 So. 855

11 Ala.App. 231

LOY v. REID.

No. 481

Court of Appeals of Alabama

June 4, 1914

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by D. Reid against Lige Loy. From a judgment for plaintiff defendant appeals. Affirmed.

John T. Glover, of Birmingham, for appellant.

Allen & Bell, of Birmingham, for appellee.

PELHAM J.

The first two counts of the complaint (designated as counts 1 and 2) set up an alleged contract or agreement made and entered into between the plaintiff (appellee here) and the defendant under the terms and stipulations of which the defendant agreed and undertook to embalm the dead body of the plaintiff's infant daughter. Damages are claimed as the proximate result of a breach of this alleged contract, or the duty growing out of it, in failing to embalm the body. A count designated as "A" was added by amendment and, the case having been tried before the court without a jury, and no proof introduced in support of counts numbered 1 and 2 authorizing a recovery on either of these counts, it is unnecessary to consider the rulings of the court in passing on demurrers interposed to these counts. The appellant, in fact, does not insist upon a consideration of the assignments of error relating to the court's action in overruling demurrers to counts 1 and 2, and the appellee concedes in brief filed that under the evidence introduced the plaintiff's right of recovery is referable to, and must depend solely upon, count A, as the evidence failed to sustain the averments of counts 1 and 2. Count A is in the following language:

"Plaintiff claims of the defendant the sum of $5,000 for that heretofore on, to wit, the 27th day of May, 1911, the defendant held himself out to the public in Birmingham, Ala., as an undertaker and embalmer of dead bodies for a reward; that on said date the defendant, or his servants, agents, or employés, acting within the line of their employment and authority from the defendant, had charge and control of the dead body of the plaintiff's infant child, aged about two years, for the purpose of preparing the same to be shipped from Birmingham, Ala., to Quinton, Ala., and for such services charged and received from the plaintiff a reward; that the defendant, or one of his said servants, agents, or employés, acting within the scope of his authority, represented to the plaintiff that the said dead body had been embalmed, and that for such services defendant's charges were $7.50, which said amount was then and there paid by the plaintiff, and said servant, agent, or employé, acting as aforesaid, then and there further represented that said dead body so embalmed could be safely withheld from burial for several days. Plaintiff alleges that said body was not embalmed, and as a proximate consequence thereof, on the day following, to wit, May 28, 1911, the said body began to decompose and foul odors arose therefrom, and plaintiff suffered great mental and physical pain and anguish and great inconvenience and annoyance in and about hurrying up arrangements for the burial of said body, and was greatly mortified at the sight of the dead body of his said child so decomposed, and plaintiff lost the sum so paid as aforesaid, to wit, $7.50. Plaintiff alleges that the burial of said child was delayed in reliance upon said representation of defendant's said agents, as aforesaid."

This count is shown by the entire course of the proceeding in the trial court, and the briefs filed here of counsel for both parties, to have been treated throughout as setting up a contract between the parties, and as seeking a recovery grounded on a breach of duty imposed on the defendant as growing out of the contract; and we treat it in that light and dispose of it on the same theory. Peters v. Brunswick-Balke-Collender Co., 6 Ala.App. 507, 60 So. 431.

It will be observed from a reading of this count that it does not aver that the plaintiff entered into a contract with the defendant under which it became the duty of the defendant to embalm...