Rush v. McDonnell
Decision Date | 22 October 1925 |
Docket Number | 1 Div. 345 |
Citation | 214 Ala. 47,106 So. 175 |
Parties | RUSH v. McDONNELL et al. |
Court | Alabama Supreme Court |
Rehearing Denied Nov. 19, 1925
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Action by Arthur L. Rush against Thomas H. McDonnell and James Glennon McDonnell. Plaintiff takes a nonsuit, and appeals from adverse rulings on demurrer to the complaint. Reversed and remanded.
Complaint for death from injury received while riding in automobile driven by defendant's incompetent minor son, with defendant's knowledge, held to state good cause of action on common-law principles, and within Acts 1911, p. 634,§ 22.
Count 3 of the complaint as amended is as follows:
"(3) The plaintiff, suing as the father of Arthur Eugene Rush, a minor under the age of 21 years, deceased, claims of the defendant Thomas Henry McDonnell the further sum of $50,000 damages for that heretofore, to wit, on the 31st day of March, 1923, the said defendant did own and possess an automobile which he did then loan to his minor son, James Glennon McDonnell, a youth under the age of 16 years, and did then negligently permit and allow the said James Glennon McDonnell to take and drive the same for his own personal pleasure and entertainment, and for the pleasure and entertainment of such other persons as he might invite and take into said automobile with him, unaccompanied by the said defendant, or any other adult person, although, as plaintiff avers, the said James Glennon McDonnell was wholly incompetent and unfit to drive said automobile, as was then well known to the said defendant; that on said day and on said occasion, after nightfall, the said James Glennon McDonnell, being so possessed of said automobile, and in sole control of its operation, did invite and take into said automobile, among other persons, all minors under the age of 21 years, the said Arthur Eugene Rush, a minor son of the plaintiff, under the age of 21 years, for a pleasure ride and thereupon he did drive said automobile, with the said Arthur Eugene Rush and others therein, over certain streets in the city of Mobile and out a certain road leading outside the city of Mobile, known as the Cedar Point road, and returning from said Cedar Point road, along and over Broad street, a public and populous thoroughfare in the city and county of Mobile, and then and there the said James Glennon McDonnell did so carelessly, negligently and improperly operate said automobile that it was caused to collide with another automobile then parked on the east side of Broad street, and was caused to be overturned, or partly overturned, and the plaintiff's said son, Arthur Eugene Rush, was thereby thrown from said automobile to the ground or was pinioned underneath it, and was thereby injured and killed, all, as the plaintiff avers, as the proximate result of the said defendant's negligence and the concurring negligence and incompetency of the said James Glennon McDonnell, as aforesaid, to the damage of the plaintiff in the said sum of $50,000 as aforesaid, wherefore the plaintiff sues."
Amended count 4 is the same as count 3 except that it alleges that defendant's son "did willfully and wantonly injure and kill the plaintiff's said son, Arthur Eugene Rush, by willfully or wantonly operating said automobile, over said populous thoroughfare at a great, excessive, and reckless rate of speed," etc., and that plaintiff's son was injured and killed "as the proximate result of the negligence of the said defendant and the concurring willfull or wanton acts of the said James Glennon McDonnell," etc.
The following grounds of demurrer were interposed to the amended third count:
The foregoing grounds of demurrer were interposed to the amended fourth count, and in addition thereto the following grounds:
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