Massey v. Pentecost, 6 Div. 53

CourtSupreme Court of Alabama
Writing for the CourtMILLER, J.
PartiesMASSEY v. PENTECOST.
Decision Date30 June 1921
Docket Number6 Div. 53

90 So. 866

206 Ala. 411

MASSEY
v.
PENTECOST.

6 Div. 53

Supreme Court of Alabama

June 30, 1921


Rehearing Denied Oct. 6, 1921

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by S. Pentecost, as administrator of the estate of Pauline Pentecost, deceased, against Richard W. Massey. Judgment for the plaintiff, and defendant appeals. Affirmed.

Anderson, C.J., and McClellan, J., dissenting. [90 So. 867]

Harsh, Harsh & Harsh and Stokely, Scrivner & Dominick, all of Birmingham, for appellant.

George Bondurant, of Birmingham, for appellee.

MILLER, J.

S. Pentecost, as administrator of the estate of Pauline Pentecost, brings this suit under the homicide statute against Richard W. Massey for wrongfully causing the death of plaintiff's intestate by running over her with an automobile in the public streets of Birmingham, Ala. It has been in this court twice. This is the third time. 201 Ala. 261, 77 So. 675; 202 Ala. 681, 81 So. 657.

There are two counts in the complaint. There were numerous demurrers to each. They were overruled by the court. Each count charges that defendant owned or operated an automobile; that his agent or servant, while acting within the line and scope of his employment, on the 19th day of December, 1913, ran the automobile over Pauline Pentecost in the streets of Birmingham, injuring her, from which she died. The first count charges that the defendant's agent or servant negligently ran said automobile over plaintiff's intestate. The second count alleges that it was done willfully, wantonly, or intentionally by defendant's agent or servant. Each count avers that at the time the agent or servant of the defendant was acting in the line and scope of his employment.

It is true that each disjunctive averment in each count must state a cause of action. If not, the count is defective, and proper demurrer thereto should be sustained. No count is stronger than its weakest link. Each alternative averment in a count is a link, and it must state a cause of action.

It is true that all willful or intentional homicides are not wrongful. A person may be killed willfully or intentionally, yet it may have been done in self-defense, and not wrongfully. The words "willful and intentional" do not carry with them, from necessity, that the act alleged was wrongfully done, unless the count contains other allegations which clearly show it was expressly or impliedly wrongful.

The deceased was run over by an automobile in the streets of Birmingham, under the allegations of the count, wantonly, intentionally, [90 So. 868] or willfully by defendant or his agent or servant. The place where the injury occurred, the instrument--an automobile--with which it was done, aids the words "willful or intentional," and shows by implication, if not expressly, that it was not done in justification or in self-defense, but wrongfully.

The homicide statutes (sections 2485 and 2486, Code of 1907) give a right of action for "the wrongful act, or omission or negligence of any person," etc. The word "wrongful" in describing the act does not appear in either count of this complaint. Instead are used the words "negligent, willful, intentional, or wanton." The words fixed by law may at times be improved upon by parties; yet frequently, by not following its plain, simple words, counts are rendered defective. The alternative averments of these counts, aided by the other allegations of facts therein, each state a cause of action, and there was no error in overruling the demurrers assigned to them. Sections 2485 and 2486, Code, 1907; Union Cemetery Co. v. Jackson, 188 Ala. 603, 65 So. 986; Barefield v. Evans, 187 Ala. 579, 65 So. 928; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Kuykendall v. Edmondson, Adm'r, 205 Ala. 265, 87 So. 882.

There was judgment, on verdict of the jury, for plaintiff on the 16th day of October 1919. Within 30 days thereafter a motion for new trial was filed by the defendant and the parties agreed for it to be heard by the court on November 3, 1919. On the 18th day of November, 1919, the court overruled the motion, and the defendant duly excepted.

On the 16th day of February, 1920, a bill of exceptions was presented to the trial judge. It was signed and approved by him on the 15th day of May, 1920. It was presented more than 90 days after the judgment was entered on the verdict of the jury, but within 90 days after judgment was entered on the motion for new trial. It purports to set out all the evidence. It can be looked to only as to matters contained in the motion for new trial; otherwise it was presented too late. Sections 3019 and 3020, Code of 1907; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; section 2846, Code of 1907, as amended Acts 1915, p. 722.

The plaintiff introduced evidence showing that Pauline Pentecost--his child, about eight or nine years old--was killed by an automobile about dark on December 19, 1913, while attempting to cross Twelfth avenue of the city of Birmingham. Plaintiff's evidence also tended to show that the automobile was running on said avenue at a rate of about 35 miles an hour when it struck the child; that it was defendant's car; that Herbert Young was driving it, and was the only person in the car at the time; the automobile was coming from the east and going west; and that Herbert Young was working for the defendant and had been in his employ for six or eight months running his car.

This court in this case, reported in 201 Ala. 261, 77 So. 675, declared that the foregoing testimony made out a prima facie case for the plaintiff. When the plaintiff proves that the child was killed on the public streets of Birmingham, Ala., by an automobile, running at the rate of 35 miles an hour, and the testimony tends to show the car belonged to the defendant, that it was being run at the time by his chauffeur, Herbert Young, then the law presumes that Herbert Young was acting in the line and scope of his employment when he ran on and killed the child; and, unless this presumption is rebutted by the evidence of the defendant, the plaintiff would be entitled to recover. This court, in Dowdell v. Beasley, 205 Ala. 130, 87 So. 18, held that this presumption of law can be overcome by evidence, and, if the evidence is strong, clear, convincing, and undisputed, the defendant would be entitled to the general affirmative charge, when requested properly in writing.

Under these authorities the following written charge of plaintiff was properly given by the court:

"If you believe from the evidence that Richard W. Massey had control of the automobile, and the chauffeur was in his employ to operate it, this fact, if you believe it to be a fact from the evidence, was sufficient to make out a prima facie case that the chauffeur was acting within the scope of his employment at the time, and, if you believe the facts to be true from the evidence, the court charges you that the burden of proof is upon the defendant to show by the evidence to your reasonable satisfaction that the servant was not at the time operating the machine in the discharge of his master's business."

The plaintiff's attorney in stating the case to the jury was allowed, over the objection and exception of defendant, to say:

"We expect to prove to you, gentlemen,
...

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27 practice notes
  • Lewis v. Martin, 6 Div. 961.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...765; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Williams v. Goodyear Tire & Rubber Co., 207 Ala. 335, 92 So. 471; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Sorsby v. Wilkerson, 206 Ala. 190, 89 So. 657; Nat. Pyrites & Copper Co. v. Williams, 206 Ala. 4, 89 So. 291. The motions to stri......
  • Sears, Roebuck & Co. v. Hamm, 6 Div. 771
    • United States
    • Alabama Court of Appeals
    • August 9, 1955
    ...of the defendant.' Cox v. Roberts, 248 Ala. 372, 27 So.2d 617, 619; Rogers v. Hughes, 252 Ala. 72, 39 So.2d 578; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Grimes v. Fulmer, 235 Ala. 645, 180 So. 321; Chandler v. Owens, 235 Ala. 356, 179 So. De......
  • Cox v. Roberts, 6 Div. 390.
    • United States
    • Supreme Court of Alabama
    • October 17, 1946
    ...Dowdell et al. v. Beasley, 205 Ala. 130, 87 So. 18; AEtna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Ford v. Hankins, supra; Freeman v. So. Life & Health Ins. Co., 210 Ala. 459, 98 So. 461; Tullis v. Blue, 216 Ala. 577, 114 So. 185; ......
  • Liverpool & London & Globe Ins. Co. v. Lowe, 7 Div. 263.
    • United States
    • Supreme Court of Alabama
    • June 8, 1922
    ...to as pertaining to matters contained in the respective motions for a new trial, for reasons we will now state. Massey v. Pentecost, 206 Ala. 411, 90 So. 866, 868; Pippin v. Perry, 206 Ala. 582, 91 So. 307; Code 1907, §§ 3019, 3020. The sole grounds of the original motion were that it had "......
  • Request a trial to view additional results
27 cases
  • Lewis v. Martin, 6 Div. 961.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...765; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Williams v. Goodyear Tire & Rubber Co., 207 Ala. 335, 92 So. 471; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Sorsby v. Wilkerson, 206 Ala. 190, 89 So. 657; Nat. Pyrites & Copper Co. v. Williams, 206 Ala. 4, 89 So. 291. The motions to stri......
  • Sears, Roebuck & Co. v. Hamm, 6 Div. 771
    • United States
    • Alabama Court of Appeals
    • August 9, 1955
    ...of the defendant.' Cox v. Roberts, 248 Ala. 372, 27 So.2d 617, 619; Rogers v. Hughes, 252 Ala. 72, 39 So.2d 578; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Grimes v. Fulmer, 235 Ala. 645, 180 So. 321; Chandler v. Owens, 235 Ala. 356, 179 So. De......
  • Cox v. Roberts, 6 Div. 390.
    • United States
    • Supreme Court of Alabama
    • October 17, 1946
    ...Dowdell et al. v. Beasley, 205 Ala. 130, 87 So. 18; AEtna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Ford v. Hankins, supra; Freeman v. So. Life & Health Ins. Co., 210 Ala. 459, 98 So. 461; Tullis v. Blue, 216 Ala. 577, 114 So. 185; ......
  • Liverpool & London & Globe Ins. Co. v. Lowe, 7 Div. 263.
    • United States
    • Supreme Court of Alabama
    • June 8, 1922
    ...to as pertaining to matters contained in the respective motions for a new trial, for reasons we will now state. Massey v. Pentecost, 206 Ala. 411, 90 So. 866, 868; Pippin v. Perry, 206 Ala. 582, 91 So. 307; Code 1907, §§ 3019, 3020. The sole grounds of the original motion were that it had "......
  • Request a trial to view additional results

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