Mobile Light & R. Co. v. Portiss, 1 Div. 864

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: 70 So. 136,195 Ala. 320
• Parties: MOBILE LIGHT & R. CO. v. PORTISS.
• Decision Date: 11 November 1915
• Docket Number: 1 Div. 864

70 So. 136

195 Ala. 320

MOBILE LIGHT & R. CO.
v.
PORTISS.

1 Div. 864

Supreme Court of Alabama

November 11, 1915

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by George Portiss against the Mobile Light & Railroad Company, for damages for killing a cow. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act of April 18, 1911, § 6, p. 449. Affirmed. [70 So. 137]

Gregory L. & H.T. Smith and Hugh M. Caffey, Jr., all of Mobile, for appellant.

Charles W. Tompkins and J.H. Kirkpatrick, both of Mobile, for appellee.

THOMAS, J.

The suit is for damages for the killing of appellee's cow by a street car, operated by the appellant, on Washington avenue, in Mobile, Ala. The complaint consisted of four counts. The second count, as amended, charged negligence to appellant's servants in the killing of the cow "after discovering it trying to cross said track;" the first and fourth counts charged wantonness. Appellant's demurrer to count 3 was sustained, and that to the fourth count was overruled. There were no demurrers to the first count.

1. Count 4 was as follows:

"Plaintiff claims of the defendant, the Mobile Light &amp Railroad Company, a corporation doing business in the city of Mobile and county of Mobile, state of Alabama, the sum of $150, damages upon the following facts. The defendant was operating a street railroad in the city of Mobile, Ala., on or about December 9, 1913; that on that date the track of said defendant for more than 100 yards, before reaching the point where said cow was killed was straight and the view unobstructed, and the defendant, its servants or agents operating said car, could have seen the peril of said cow by the exercise of due care and diligence, yet, notwithstanding this fact, the defendant, its agents or servants, wantonly ran the car upon said cow and killed it, on Washington avenue on the track of the Mobile Light & Railroad Company, to the damage of plaintiff in the sum of $150."

Appellant's demurrer thereto was:

"Because it does not show any duty on the part of the defendant towards the plaintiff not to be guilty of negligence in the operation of its said car."

The office of the demurrer is to specifically point out the defects in pleadings to which it is directed, that the opposite party may have the opportunity of curing the defect by amendment, and it may not be general. Code 1907, § 5340; L. & N.R.R. Co. v. Johnson, 162 Ala. 665, 50 So. 300; St. Louis v. Phillips, 165 Ala. 504, 51 So. 638; Railway, Light & Power Co. v. O'Brien, 185 Ala. 617, 64 So. 343; Railway, Light & Power Co. v. Hatton, 187 Ala. 573, 65 So. 934.

In Birmingham Railway, Light & Power Co. v. Barrett, 179 Ala. 274, 60 So. 762, Mr. Justice Somerville says: [70 So. 138] "Where the complaint merely states the fact and res gestae of the injury, not imputing the defendant's negligence to them, and without specifying the negligent acts or omissions relied on, a general averment *** is sufficient." Bryant v. A.G.S.R.R. Co., 155 Ala. 368, 46 So. 484; B.R., L. & P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; B.R., L. & P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80.

The count was a general averment of the facts that caused the injury, and that the injury was the proximate result of defendant's negligence. The trial court committed no error in overruling defendant's demurrer to the fourth count of the complaint.

2. After the plaintiff had rested his case, he asked leave of the court to amend the second count of the complaint by changing the words, "after its discovery on the track," to the words, "discovering it trying to cross the track." This amendment, allowed over the objection of the defendant, was clearly within the lis pendens, and was obviously made to meet a slight variance in the evidence. Code 1907, § 5367 et seq.; Nash, Adm'r, v. Southern Railway Co., 136 Ala. 177, 33 So. 932, 96 Am.St.Rep. 19; Beavers, Adm'r, v. Hardie & Co., 59 Ala. 570; Floyd v. Wilson, 163 Ala. 283, 50 So. 122; 7 Mayf.Dig. p. 704. If the defendant thought it was prejudiced by such amendment, it should have asked the court for a continuance to meet this unexpected contingency. The amendment was not a departure. It introduced no new element of proof that might not have been expected and met by the defendant. There was no error in allowing the amendment.

3. The defendant then moved the court "to rule out the plaintiff's evidence on the ground that the plaintiff had not made out a prima facie case," and on this appeal presents for review the overruling of its motion. The ground for the motion, urged in the lower court, was that the--

"first, the second as amended, and the fourth counts charged wanton injury of the plaintiff's cow, and that there was no evidence of wantonness to support these counts."

The motion was no doubt intended to raise the question of the right to test the sufficiency of the evidence by a motion to exclude all the evidence, rather than by a demurrer to the evidence. The motion to exclude is not embarrassed with admissions; while the demurrer to evidence admits the truth of the evidence, and of every inference and conclusion which a jury could legally deduce therefrom, and submits to the court the determination of the issue of fact between the parties as well as the law. Code 1907, § 5343; 6 Mayf.Dig. 373, § 102; Martin v. State, 62 Ala. 240; Gluck v. Cox, 90 Ala. 331, 8 So. 161; Cent. R. & B. Co. v. Roquemore, 96 Ala. 236, 11 So. 475; Curtis v. Daughdrill, 71 Ala. 590; Armstrong v. Armstrong, 29 Ala. 541; Foster v. McDonald, 5 Ala. 376; McGehee v. Greer, 7 Port. 537.

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