Mobile Light & R. Co. v. Ellis

• Decision Date: 10 January 1922
• Docket Number: 1 Div. 210.
• Citation: 207 Ala. 109,92 So. 106
• Parties: MOBILE LIGHT & R. CO. v. ELLIS,
• Court: Alabama Supreme Court

92 So. 106

207 Ala. 109

MOBILE LIGHT & R. CO. v. ELLIS,

1 Div. 210.

Supreme Court of Alabama

January 10, 1922

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by James C. Ellis, Jr., against the Mobile Light & Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellant.

Stevens McCorvey, McLeod & Goode, of Mobile, for appellee.

GARDNER J.

Plaintiff appellee here, received an injury to his hand on one of defendant's cars while attempting to board the same, and brought this suit to recover damages therefor. The cause was tried upon count 2, pleas of general issue, and contributory negligence, resulting in judgment for plaintiff, from which defendant prosecutes this appeal.

Count 2 will appear in the report of the case. Its sufficiency was challenged by appropriate demurrer. The rule of course is well understood that pleading is to be construed most strongly against the pleader. It will appear that the count does not allege that the car was being operated by defendant for the carriage of passengers, nor is it averred that defendant is a common carrier of passengers for hire. It is to be noted also that the count fails to aver that plaintiff was a passenger or intended to become such; this is left entirely to be inferred. Jefferson Co. v. Gulf Ref Co., 202 Ala. 510, 80 So. 798. The count therefore is defective in failing to show such relationship between the parties, out of which a duty arose to the plaintiff, and the breach of which duty must constitute the foundation of the cause of action. The demurrer should have been sustained. N. B'ham Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; B'ham Ry. Co. v. Mason, 137 Ala. 342, 34 So. 207; Southern Ry. Co. v. Johnson, 144 Ala. 365, 39 So. 376, 113 Am. St. Rep. 48; B'ham Ry. Co. v. Littleton, 201 Ala. 141, 77 So. 565; B'ham Ry. Lt. & P. Co. v. Anderson, 3 Ala. App. 424, 57 So. 103; Tenn. Coal & Iron Co. v. Smith, 171 Ala. 251, 55 So. 170.

Counsel for appellee seek to save the cause from reversal by the application of rule 45 (61 South. ix), as construed by this court in the following recent authorities: Best Park Amus. Co. v. Rollins, 192 Ala. 534, 68 So. 417; Taylor v. Lewis (Ala. Sup.) 89 So. 581; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Clinton Min. Co. v. Bradford, 200 Ala. 308, 76 So. 74; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; B'ham South. Ry. Co. v. Goodwyn, 202 Ala. 599, 81 South, 339.

In view of the rule that pleadings are to be construed most strongly against the pleader, and the further rule that, in actions of this character, the complaint should state facts from which a duty from defendant to plaintiff follows as a matter of law (Tenn. Coal & Iron Co. v. Smith, supra), the writer is of the opinion that the complaint on this appeal fails to state a cause of action, as it fails to establish or express a breach of duty owing by defendant to plaintiff, and prefers to rest his conclusion for a reversal of the cause upon...