Malone Freight Lines, Inc. v. McCardle

• Decision Date: 03 September 1964
• Docket Number: 6 Div. 874
• Citation: 277 Ala. 100,167 So.2d 274
• Parties: MALONE FREIGHT LINES, INC. v. L. C. McCARDLE.
• Court: Alabama Supreme Court

Page 274

167 So.2d 274

277 Ala. 100

MALONE FREIGHT LINES, INC. v. L. C. McCARDLE.

6 Div. 874.

Supreme Court of Alabama.

Sept. 3, 1964.

Maurice F. Bishop, Birmingham, for appellant.

E. Ray Large, Birmingham, for appellee.

COLEMAN, Justice.

Defendant appeals from judgment for plaintiff, on jury verdict, in action for damage to plaintiff's tractor caused by fire and alleged to be the proximate result of defendant's negligence in servicing a fire extinguisher which was affixed to and carried on the fender of plaintiff's tractor.

Plaintiff alleges that defendant, as a condition of a contract entered into by plaintiff and defendant, had required plaintiff to purchase the extinguisher from defendant and affix it to plaintiff's tractor which plaintiff was using, together with a trailer furnished by defendant, to haul freight pursuant to the contract.

Two principal questions are presented. First, is the complaint sufficient against defendant's demurrer? Second, is the evidence sufficient to submit the case to the jury?

The complaint recites:

'Come the plaintiffs in the above styled cause and claim of the defendants the sum of Five Thousand Dollars ($5,000.00) as damages for that heretofore on, to-wit: December 9, 1958 the plaintiffs were operating a tractor-trailer unit as independent contractors while engaged in a contract with the defendants whereby the plaintiffs were to haul freight designated by the defendants to a destination designated by the defendants for a consideration from the serviced party which consideration was to be shared by the plaintiffs and defendants: that the defendants required of the plaintiffs as a condition of said contract or by rules and regulations promulgated by authority of said contract, that the plaintiffs purchase a fire extinguisher from the defendants and affix same - - - to the aforesaid tractor-trailer unit; and plaintiffs did comply with said condition on, to-wit: December 15, 1957; that the defendants did purport to service and put in good working order said fire extinguisher on, to-wit: November 28, 1958, but negligently failed to do so; that on, to-wit: December 9, 1958, plaintiffs' tractor-trailer unit to which said fire extinguisher was affixed caught fire on or near public Highway Number Seventy-Eight, to-wit: two miles East of Guin, Alabama; that said fire was small and confined to a small area of said tractor when first discovered by the plaintiffs who immediately upon discovery attempted to extinguish said fire with said negligently serviced fire extinguisher and as a proximate result of the aforesaid negligence of the defendants the fire extinguisher failed or refused to function and said tractor was consumed by flames.'

The complaint was amended to make the words plaintiffs and defendants read plaintiff and defendant, and to make December 15, 1957, read November 15, 1958.

Defendant argues that the complaint is insufficient in two particulars. Grounds of demurrer 8, 9, 14, 25, 26, and 33 raise the first point that the facts alleged do not show that defendant has breached any duty owed by defendant to plaintiff. Grounds 12, 19, 21, 28, and 29 raise the second point that the allegations do not show that defendant's negligence was the proximate cause of plaintiff's loss. We hold both points well taken.

In every case founded on actionable negligence, three elements are essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient. Tennessee Coal, Iron & R. R. Co. v. Smith, 171 Ala. 251, 255, 256, 55 So. 170; Stokely-Van Camp, Inc. v. Ferguson, 271 Ala. 12, 122 So.2d 356.

In the instant complaint, the pertinent allegations to show the existence of defendant's duty are: plaintiff was operating a tractor-trailer unit . . . while engaged in a contract with defendant whereby plaintiff was to haul freight, to a destination designated by defendant, for a consideration to be shared by plaintiff and defendants; that defendant, as a condition of the contract, required plaintiff to purchase from defendant a fire extinguisher and affix it to the tractor-trailer unit; that plaintiff complied with the condition on November 15, 1958; 'that the defendant did purport to service and put in good working order said fire extinguisher on, to-wit: November 28, 1958, but negligently failed to do so.'

We are of opinion that the facts alleged do not show that defendant owed to plaintiff a duty to exercise reasonable care in servicing the extinguisher.

The rule has been stated, we think correctly, that one who contracts to make repairs, and performs the work in an unskillful or negligent manner, is liable for the damage resulting from the improper performance, and which can be regarded as having been within the contemplation of the parties. 1 A.L.R. 1654. See also: 38 Am.Jur. 662, Negligence, § 20; 65 C.J.S. p. 639 Negligence § 101. Application of the rule may be found in Livermore Foundry & Mach. Co. v. Union Compress & Storage Co., 105 Tenn. 187, 58 S.W. 270, 53 L.R.A. 482; and Burr v. Clark, 30 Wash.2d 149, 190 P.2d 769.

Plaintiff, in the instant case, however, does not allege that, as a condition or promise under the hauling contract, defendant undertook to service or repair the extinguisher and put it in good working order; and plaintiff does not allege a new or separate contract whereby defendant undertook or agreed to service or repair the extinguisher. The allegation is merely that defendant 'did purport' to service the extinguisher.

In Webster's New International Distionary of the English Language, G. & C. Merriam Company, 1926, page 1739, purport, as a verb, is defined as follows:

'To have the appearance or convey the impression of being, meaning, or signifying (some particular thing); to import; to mean or seem to mean or intend;--often with an object clause or infinitive; as, the letter purports to be from the president; the law purports to be in the interest of morality.'

In Webster's Third New International Dictionary, G. & C. Merriam Co., 1961, page 1847, purport is defined as:

'1: to convey, imply, or profess outwardly (as meaning, intention, or true character): have the often specious appearance of being, intending, claiming (something implied or inferred): IMPART, PROFESS (a letter that purports to express public opinion) (a law that purports to be in the interest of morality) (men purporting to be citizens) 2: to have in mind: INTEND, PURPOSE.'

Construed most strongly against the pleader on demurrer, the allegation can be taken to mean that defendant had in mind or intended to service the extinguisher but negligently failed 'to do so'; that is, negligently serviced or negligently intended to service it. Whether the negligence was in the servicing or in the intending is not clear.

For defendant to owe a duty to exercise reasonable care in repairing the extinguisher, defendant must have done more than merely intend to service it. Because the complaint fails to allege facts out of which the duty of defendant arises, the grounds of demurrer taking that point should have been sustained.

The second question raised by the demurrer is: Does the complaint show that defendant's negligence in servicing the extinguisher was the proximate cause of the burning of the tractor?

Pertinent allegations are: plaintiff's tractor-trailer unit caught fire; the fire was small and confined to a small area when plaintiff discovered it; plaintiff immediately attempted to extinguish the fire with the extinguisher; as a proximate result of the negligence of defendant, the extinguisher failed to function and the tractor was consumed by the fire.

Plaintiff does not allege that the extinguisher, if in good working order, was an instrument adequate and sufficient to put out the fire. For aught that is alleged, even if defendant had properly serviced the extinguisher and it had been in good working order, the extinguisher may not have been an instrument adequate and sufficient to extinguish the fire. Because that construction of the complaint is against the pleader, that construction must be adopted. Under the construction, even if the extinguisher had worked property, plaintiff could not have put out the fire and his tractor would have burned anyway. Under that construction, defendant's negligence in servicing the extinguisher would not have had any effect on the loss and would not be a proximate cause of plaintiff's loss.

When the complaint is so construed, it fails to show the third essential element, i. e., an injury to plaintiff proximately resulting from defendant's breach of duty. Tennessee Coal, Iron & R. R. Co. v. Smith, supra. Because the complaint fails to show that defendant's negligence was the proximate cause of plaintiff's loss, the grounds of demurrer taking that point should have been sustained.

In view of another trial we deem it proper to consider the second principal question; i. e., whether the evidence is sufficient to take the case to the jury.

Defendant argues that it was entitled to the affirmative charge because the evidence was insufficient in three particulars: (1) the evidence will not support a finding that defendant was guilty of negligence in servicing the extinguisher; (2) the evidence fails to show that defendant's negligence was the proximate cause of plaintiff's loss; and (3) the evidence shows that the proximate cause of plaintiff's loss was an independent, intervening agency, the fire, for which defendant was not responsible.

Pertinent evidence is to the following effect.

There is no direct testimony as to what defendant's employees did or did not...