Thompson v. White

• Decision Date: 07 February 1963
• Docket Number: 3 Div. 905
• Citation: 274 Ala. 413,149 So.2d 797
• Court: Alabama Supreme Court
• Parties: Martha THOMPSON v. Lawson WHITE et al.

Page 797

149 So.2d 797

274 Ala. 413

Martha THOMPSON v. Lawson WHITE et al.

3 Div. 905.

Supreme Court of Alabama.

Feb. 7, 1963.

Walter J. Knabe and M. R. Nachman, Jr., Montgomery, for appellant.

Rushton, Stakely & Johnston, Gulf, Vinson & Gore, Montgomery, for appellees.

COLEMAN, Justice.

This is an appeal by plaintiff, from a judgment in her favor, in an action to recover for personal injury allegedly sustained when one of the defendants drove an automobile into the rear of the automobile in which plaintiff was riding.

There is only one plaintiff. There are four defendants. One defendant is Lawson White, who was the driver of the automobile which struck the vehicle in which plaintiff was riding. The other defendants are Gulf Oil Corporation, a corporation; Herman Vinson; and Lee Gore. These three last named defendants will be sometimes collectively referred to as the Gulf defendants.

Plaintiff's contentions are that she was riding in an automobile, hereinafter sometimes referred to as the plaintiff car, being driven by her daughter along Atlanta Highway; that the automobile stopped for a traffic light at the intersection of said Atlanta Highway with Forest Hills Drive in the City of Montgomery; that the automobile driven by White ran into the rear end of the automobile in which plaintiff was riding while it was stopped at the light; that the collision and resulting injury to plaintiff were proximately caused by the concurring negligence of Gulf defendants and White; that the negligence of Gulf defendants consisted in their causing the performance of certain clowns, at a filling station recently opened on one corner of the intersection, 'on the portion of the Atlanta Highway used by travelling motorists'; and that White so operated his automobile as to allow his attention to be diverted by the clowns so that he ran his automobile into the automobile in which plaintiff was riding.

Gulf defendants contend that they were not guilty of any negligent or worngful conduct in causing the performance of the clowns and that the performance of the clowns was not a proximate cause of plaintiff's injury.

On the trial, White contended that the plaintiff car stopped at the light, started across the intersection, without cause stopped again in the middle of the intersection, and that the collision was the result of the second stopping of the plaintiff car and not the result of any negligent or wrongful act on White's part.

The case was tried on two counts, one charging negligence and one charging wanton injury. When plaintiff rested, the court gave the affirmative charge with hypothesis in favor of Gulf defendants as to both counts and in favor of defendant, White, as to the wanton count. The case was thus finally submitted to the jury against one defendant only, White, and on one count only, which charged negligence.

The jury returned a verdict for plaintiff, against White, for $5,000.00. From the judgment on the verdict, and the judgment overruling her motion for new trial, plaintiff appeals.

The court sustained the demurrer of the Gulf defendants to Counts I-A thourgh VI-A, both inclusive, all of which charge negligence except V-A which charges wanton misconduct. Plaintiff insists that sustaining the demurrer of Gulf defendants to these counts was error.

In these six counts, plaintiff alleges, with slight variations, tht Gulf defendants were conducting a business at the intersection where the collision occurred, and that Gulf defendants 'so negligently conducted their said business as to cause or permit the performance * * * at or near the said Atlanta Highway of certain clowns or performers,' when said Gulf defendants knew or should have known that such performance would divert the attention of and create an unreasonable risk of harm to travelers, including plaintiff, on Atlanta Highway. Count V-A charges that Gulf defendants 'wantonly conducted their said business' as to cause or permit the performance of clowns, etc. Count IV-A does not particularize the act relied on as constituting negligence of the Gulf defendants, but charges that they '* * * so negligently operated the said business at said time and place as to divert the attention of defendant Lawson White * * *.' The reporter will set out Count IV-A in extenso.

Where a complaint in general terms avers negligence, and then avers the particular act or acts constituting the alleged negligence without more, unless such act or acts in themselves amount to negligence, the complaint is demurrable. Johnson v. Birmingham Railway, Light & Power Co., 149 Ala. 529, 533, 43 So. 33. When the pleader charges negligence and wantonness in general terms and then sets up the facts upon which such charges are predicated, the facts set up must, in themselves show negligence and wantonness. Lovell v. Southern Ry. Co., 257 Ala. 561, 59 So.2d 807.

On the other hand, in a count charging negligence it is sufficient to allege only facts and circumstances from which the law imposes a duty to the plaintiff, and then a general charge of negligence in the performance of that duty without a statement of the particular manner in which it was negligently performed. Brown v. City of Fairhope, 265 Ala. 596, 599, 93 So.2d 419.

The difference between said six counts to which demurrer was sustained and the two other counts to which demurrer was overruled, and on which the case was tried, lies in the averment as to the place where the clowns performed. The six counts, except IV-A, allege, in effect, that the clowns performed near the Atlanta Highway.

To show a duty owed to plaintiff and breach thereof by defendant, plaintiff relies, as we understand her argument, on the common law duty of every man to so use his own property as not to injure that of another. Perhaps the case most nearly like this one is Wolf v. Des Moines Elevator Company, 126 Iowa 659, 98 N.W. 301, 102 N.W. 517. In that case, defendant operated a grain elevator adjoining a certain way which the public had used for many years. To supply power for the elevator, defendant installed a gasoline engine. The exhaust pipe of the engine extended up through the roof of the engine room, which was located about forty feet distant from the traveled way. When the engine was working, its exhaust gave off loud, sharp puffs through the exhaust pipe at irregular intervals. There was evidence that the muffler on the engine was ineffective in muffling the sound of the exhaust, and also tending to prove that the exhaust pipe could be differently constructed so that the sound of exhaust would be materially lessened. Plaintiff was driving his team on the traveled way and the team took fright from the exhaust explosions produced by defendant's engine and ran away resulting in plaintiff's injury.

The trial court took the case from the jury and entered judgment for defendant on an instructed verdict. On appeal by plaintiff, the Supreme Court of Iowa reversed the judgment and remanded the cause.

The appellate court held that the question of defendant's negligence was for the jury and said:

'The basic principle upon which the doctrine of all the cases is bottomed is found in the maxim old as the books--in substance, that no man shall make use of his own property in such manner as to unreasonably interefere with the enjoyment on the part of others of the rights conferred upon them by law. Of necessity it follows that in each individual case the question must resolve itself to this: Was the use being made of the adjacent property such in character as to be an unnecessary interference with or unnecessarily dangerous to persons making lawful use of the street or highway? And whether or not improper use amounting to negligence has been made to appear in any given case is generally a question to be determined by the jury. Taking the facts as shown by the record in the instant case, we think it cannot be doubted but that the elevator was located at a place where it might properly be. So, too, as we think, the use of a gasoline engine in connection with the operation of such elevator was proper and lawful, and cannot therefore be said to have been per se negligent. The use of gasoline in the creation of motive power has become general throughout the country, not only in the operation of mills and factories, but as well for the purposes of locomotion, and there can be no grounds upon which to predicate at this time a holding that such use is in and of itself wrongful. As in the use of steam and electricity, it becomes wrongful only when the use is attended with negligence. Accepting such to be the law, there is no escape, in our view, from the conclusion that, under the facts disclosed, the question whether there was negligence in the matter of the use and operation of defendant's engine should have been submitted under proper instructions to the jury for a verdict.' (126 Iowa, at pages 663, 664, 98 N.W., at pages 302, 303)

In the instant case, in the six Counts I-A to VI-A, except IV-A, plaintiff undertook to aver the particular act constituting the alleged negligence and wanton misconduct of Gulf defendants. The allegation of the act is that Gulf defendants caused clowns to perform near the highway. We are of opinion that the act of causing clowns to perform near a highway, without more, does not constitute a breach of the duty owed by...