Stoudemire v. Davis, 5 Div. 788.

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: 94 So. 498,208 Ala. 495
• Docket Number: 5 Div. 788.
• Decision Date: 02 November 1922
• Parties: STOUDEMIRE v. DAVIS.

94 So. 498

208 Ala. 495

STOUDEMIRE
v.
DAVIS.

5 Div. 788.

Supreme Court of Alabama

November 2, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Action by O. C. Davis against E. E. Stoudemire. From a judgment for plaintiff, defendant appeals. Affirmed.

J. Sanford Mullins, of Alexander City, and James W. Strother, of Dadeville, for appellant.

Smith & Morrow and Stokely, Scrivner & Dominick, all of Birmingham, for appellee.

McCLELLAN, J.

The plaintiff, appellee, was awarded judgment for damages on account [94 So. 499] of personal injuries inflicted by appellant's automobile while being operated by an agent or servant. The case was submitted to the jury on counts 1 and 3. The former declared upon simple negligence, the latter upon willful or wanton wrong, proximately causing plaintiff's injury. It is insisted that the court erred in overruling demurrer to these counts, the argument being that they were rendered defective by the omission to aver that the highway, on which the parties were averred to be when the injury occurred, was a public highway. The grounds of the demurrers to these counts, respectively, were general-did not specify, as the statute (Code, § 5340) requires, the particular, asserted defect to which the argument, only, refers. Aside from other reasons that might justify the counts (permissible general averments of negligence being employed to characterize the cause of the injury, Walker v. Ala., etc., Ry., 194 Ala. 360, 364, 70 So. 125), the court did not err in overruling the demurrers to these counts.

The plaintiff and another, riding a motorcycle, passed defendant's automobile on a public highway. Three men besides the defendant owner were in the car. One Hardy was driving the car, and defendant was occupying a back seat. There was evidence tending to show that Hardy was the agent or servant of defendant in operating the defendant's car. Over defendant's objections, the plaintiff was allowed to introduce testimony that one or two of the four men in the automobile "hollered" at plaintiff and his companion on plaintiff's motorcycle as they passed the automobile or just after they had passed the automobile and up to the time of the collision; the plaintiff, himself, testifying that one of them said: "*** I will run over you." The chief objection was that the testimony did not designate either defendant or Hardy (the driver) as the person making this statement or others of somewhat similar character. The car and the motorcycle traveled only a short distance (about 30 yards at the outside) before the car struck the motorcycle. The evidence for defendant, given by him and the three men with him, denied that any such statements were made as the motorcycle passed or after it passed the automobile and before the impact. The defendant's theory of nonliability was supported by testimony designed to show that the injury to plaintiff was due to unavoidable accident, so far as defendant or Hardy (the driver) were concerned; that plaintiff's motorcycle "wobbled" in front of the automobile in such proximity that all diligence could not have prevented the collision. On the other hand, the plaintiff's evidence tended to show a careless, if not entirely reckless, running down of the motorcycle by the automobile. Testimony of the character under consideration was admissible in the state of the evidence before the court at the time it was presented. It was of the res gestæ of the event. According to the evidence for the plaintiff, the "hollering" described in the testimony came from the unidentified one or two of the four men in the automobile, as and after the motorcycle passed the car, the "hollering" continuing up to the collision. At the rate of speed the car was shown to be running, a very short period elapsed between the moment...