Stallworth Turpentine Co. v. Ward

• Decision Date: 20 December 1923
• Docket Number: 1 Div. 279.
• Citation: 210 Ala. 595,98 So. 719
• Parties: STALLWORTH TURPENTINE CO. ET AL. v. WARD.
• Court: Alabama Supreme Court

98 So. 719

210 Ala. 595

STALLWORTH TURPENTINE CO. ET AL. v. WARD.

1 Div. 279.

Supreme Court of Alabama

December 20, 1923

Rehearing Denied Jan. 24, 1924.

Appeal from Circuit Court, Monroe County; Jno. D. Leigh, Judge.

Action by Annie Ward, as administratrix of the estate of Arthur Ward, deceased, against the Stallworth Turpentine Company, a partnership, and others. From a judgment for plaintiff defendants appeal. Affirmed.

Barnett Bugg & Lee, of Monroeville, for appellants.

J. D Ratcliffe and L. S. Biggs, both of Monroeville, for appellee.

GARDNER J.

One Arthur Ward, a young man, 17 years of age, was thrown from his horse on November 17, 1920, receiving a wound upon the head in which blood poison subsequently developed, resulting in his death on December 13th thereafter. The horse became frightened at a motor truck which was being driven along a public road by the agent of Stallworth Turpentine Company, acting within the line and scope of his employment. Annie Ward, mother of deceased, qualified as administratrix, and brought this suit to recover damages for the death of decedent, relying for recovery upon the alleged negligent conduct of the agent in the operation and management of said motor truck-resulting in a judgment for the plaintiff, from which the defendant has prosecuted this appeal.

It is first insisted that the court committed error in overruling the demurrer to counts 1 and 2 of the complaint. These counts seek recovery for the alleged negligent conduct of the driver of the truck after a discovery of the perilous position of plaintiff's intestate.

We are of the opinion these two counts contain the necessary elements to support the charge of simple negligence; that is, the duty owing to the plaintiff's intestate, a negligent failure to perform that duty, and the injury as a proximate result of such failure. This suffices to meet the rule in cases of this character. Pizitz D. G. Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Maddox v. Jones, 205 Ala. 598, 89 So. 38; Bradley v. Wood, 207 Ala. 602, 93 So. 534. This court has often declared that, while fully recognizing the rule that pleading is to be construed most strongly against the pleader, yet it is to be given a natural and common sense construction, as opposed to a strained and unnatural one. These counts so construed are sufficient to show the negligent conduct of defendant's agent in continuing to operate said truck with its consequent noise, after having discovered the perilous position of plaintiffs' intestate by reason of the great fright of his horse. There was no error in overruling the demurrers to counts 1 and 2.

Moreover, in addition to these counts, the cause was tried upon counts 5, 6, 7, and 10, which charge simple negligence on the part of the driver of the motor truck in the operation, management, and control thereof. It is well settled that under these counts recovery may be sustained upon proof showing subsequent negligence. Saxon v. Cent. of Ga., 192 Ala. 434, 68 So. 313; L. & N. R. R. v. Abernathy, 192 Ala. 629, 69 So. 57. In no event, therefore, could the ruling of the court on demurrer to counts 1 and 2 have worked any injury to the defendant.

There was no error in sustaining demurrer to the special pleas interposed. These pleas attempt to set up negligence subsequent to the injury charged, and related to the question of proximate cause (provable under the general issue), rather than presenting any question of contributory negligence. Armstrong v. Montgomery St. Ry., 123 Ala. 233, 26 So. 349.

It is further insisted the affirmative charge was due upon counts 5, 6, 7, and 10, on the theory of variance between the allegations and the proof. We are of the opinion no material variance is shown. These counts charge simple negligence on the part of the defendant's agent in the operation management, and control of the motor truck, and we do not agree with the contention that they rest for recovery upon the negligence of the driver of the truck in the first...