Myers v. Baker

• Decision Date: 09 June 1931
• Docket Number: 4 Div. 768.
• Citation: 135 So. 643,24 Ala.App. 387
• Parties: MYERS v. BAKER.
• Court: Alabama Court of Appeals

135 So. 643

24 Ala.App. 387

MYERS v. BAKER.

4 Div. 768.

Court of Appeals of Alabama

June 9, 1931

Rehearing Denied June 30, 1931.

Appeal from Circuit Court, Barbour County; F. W. Hare, Judge.

Action in trespass by William Baker against Benjamin R. Myers. From a judgment for plaintiff, defendant appeals.

Affirmed.

O. S. Lewis and T. E. Buntin, both of Dothan for appellant.

Sollie & Sollie, of Ozark, for appellee.

SAMFORD J.

The complaint was in one count, as follows: "Plaintiff claims of the defendant Eight Hundred Dollars ($800.00) damages, with interest thereon, for that heretofore, on or about the 27th day of January, 1924, while defendant was driving and in possession of one Dodge automobile, which belonged to him, upon a journey he was then making along the public road and highway, leading from Banks to Troy, in Pike County, Alabama, defendant committed a trespass upon plaintiff's said car, in that wrongfully and with great force defendant ran his own automobile against and into plaintiff's said automobile, and broke, bruised, bent and injured its wheels, and all the parts thereof; punctured bruised and injured its tires and tubes and all the parts thereof; broke, bent, bruised and injured its chassis and all the parts thereof; broke, bent, bruised and injured generally its motor and all the parts thereof; broke, bent, bruised and injured generally its engine and all the parts thereof broke, bent, bruised and injured generally its seats and body and all the parts thereof; broke, bent, bruised and generally injured its top and all parts thereof; and rendered it substantially valueless, to the damage of plaintiff, in said sum, for the recovery of which, with the interest thereon plaintiff sues." This complaint follows the complaint in Mobile & M. Ry. Co. v. McKellar, 59 Ala. 458, and sufficiently states a cause of action in trespass. 38 Cyc. p. 1080 (c). The court did not err in overruling the demurrers.

The remaining errors assigned and insisted upon depend upon whether there is evidence tending to prove a trespass to plaintiff's car rather than a negligent injury to same. If, as a matter of law, the facts as proven tend to prove only a case of simple negligence, there can be no recovery whereas, if the facts tend to prove an intentional or a grossly negligent act on the part of defendant accompanied by force and as a result thereof plaintiff's car was injured, the plaintiff would...