Macke v. Sutterer

• Citation: 224 Ala. 681,141 So. 651
• Decision Date: 24 March 1932
• Docket Number: 6 Div. 100.
• Parties: MACKE ET AL. v. SUTTERER.
• Court: Supreme Court of Alabama

141 So. 651

224 Ala. 681

MACKE ET AL. v. SUTTERER.

6 Div. 100.

Supreme Court of Alabama

March 24, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Jefferson County; R. B. Carr, Judge.

Action for damages by Lenora Sutterer against F. G. Macke and the Macke Real Estate & Insurance Company. From a judgment for plaintiff, defendants appeal.

Transferred from Court of Appeals under section 7326, Code of 1923.

Affirmed.

Victor H. Smith, of Birmingham, for appellants.

Harsh Harsh & Hare, of Birmingham, for appellee.

BROWN J.

This is an action on the case by the tenant against the landlord for personal injury resulting from the breaking or giving away of the steps to the house, causing plaintiff to fall. The case was submitted to the jury on the third and fifth counts of the complaint and the defendants' pleas of the general issue and contributory negligence.

The third count of the complaint, after averring the tenancy plaintiff's injury, the date thereof, and its causation by the breaking or giving away of the steps, avers that during said tenancy and before the injury, "defendants voluntarily undertook to make certain repairs to said steps and as a proximate consequence thereof, said steps were caused or allowed to be or remain in an unsafe condition for use by plaintiff, and plaintiff further avers that defendants negligently performed said work of repairing said steps as aforesaid, and negligently caused or allowed same to be or remain in an unsafe condition for use by plaintiff as aforesaid, and plaintiff avers that as a proximate consequence of said negligence, she suffered her said injuries and damage as aforesaid."

The contention of appellants here is that, construing these averments most strongly against the pleader, it appears from the averment, "defendants voluntarily undertook to make certain repairs to said steps and as a proximate consequence thereof, said steps were caused or allowed to be or remain in an unsafe condition for use by plaintiff," that plaintiff seeks to predicate her right of recovery, in part, not on the negligent performance of the work, but on the inherent defects existing in the steps. To state the proposition in a different form, that the italicized averment is in the alternative, and testing the sufficiency of the complaint according to its weakest averment, it fails to show any duty on the part of the defendants to make the steps safe for use by plaintiff, and therefore is insufficient, as against the demurrer, taking the point, among others, "that it fails to show any liability for allowing said steps to remain in an unsafe condition."

If the quoted averment stood alone, there would be much force in this contention, but it is also settled that pleadings are to be construed by taking the allegations thereof as a whole, and not in the light of detached sentences or paragraphs standing alone. Hurt v. Southern R. Co., 205 Ala. 179, 87 So. 533, 535; Northern Alabama R. Co. v. Mitchell, 205 Ala. 448, 88 So. 558.

So construing the averments of this count, our judgment is that it appears with certainty to a common intent "that the steps were caused or allowed to be and remain in an unsafe condition for use by the plaintiff" as a proximate result of the negligence of defendants in performing the work of repairing said steps. The averments of the unsafe condition and defendants' negligence in performing the work are conjoined by the conjunction "and," and imposed on the plaintiff the burden of proving all the averments as laid in the count. In other words, the gravamen of the count is the negligence of the defendants in performing the work which they voluntarily undertook, and as a proximate consequence of such negligence the plaintiff received her injuries. The demurrer was overruled to this count without error. Bains v. Dank, 199 Ala. 250, 74 So. 341; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; 16 R. C. L. 1045, § 565; Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362.

The next contention is that count 5 of the complaint was demurrable for failing to aver "wherein defendants negligently performed said repairs on said steps," or what the defendants "did, or caused or allowed to be done in or about the repairs of said steps that was negligent."

The rules of good pleading as established by the decisions of this court and the provisions of the statute, requiring briefness and perspicuity in the presentation of the facts and matters to be put in issue, do not require that the quo modo of the negligence be averred with particularity. It is sufficient if the facts alleged show that the defendant owed the plaintiff a duty, and, when this is made to appear, the breach of the duty may be alleged in general terms "little if at all short of the mere conclusions of the pleader." Postal Telegraph Cable Co. v. Jones, 133 Ala. 217, 32 So. 500, 502; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Code 1923, § 9457.

The demurrers to count 5 were properly overruled.

Among other elements of damages claimed in the complaint, as the result of the injury which plaintiff received, was that "plaintiff was at the time pregnant and was caused to be in danger of a miscarriage; *** was caused to suffer "great mental and physical pain and anguish" resulting from physical injury. The questions to Dr. Cooper who defendants conceded was qualified as a professional, witness, and who had attended the plaintiff professionally, related to matters of professional knowledge, observation, and experience, clearly relevant to the question of damages alleged to have resulted proximately from the injury, and were allowed without error. Central of Georgia R. Co. v. Kimber, 212 Ala. 102, 101 So. 827; Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927; Ala. Fuel...