Weston v. National Mfrs. & Stores Corp.

Decision Date06 April 1950
Docket Number1 Div. 347
Citation253 Ala. 503,45 So.2d 459
CourtAlabama Supreme Court
PartiesWESTON v. NATIONAL MANUFACTURERS & STORES CORPORATION.

Scott & Porter, of Chatom, for appellant.

Chas. Hoffman, of Mobile, for appellee. The complaint is as follows:

COUNT ONE: Plaintiff claims of the Defendant the sum of Fifty Thousand ($50,000.00) Dollars for damages for the breach of duty to the plaintiff arising out of the following facts alleged to be true:

The Plaintiff is a resident of Jackson, Alabama, The Plaintiff is the mother of Mrs. Amy Weston Bonds; is the mother-in-law of Wesley Bonds, the husband of the aforesaid Amy Weston Bonds, and is the grand-mother of Wesley Bonds, Jr., a minor of to-wit, three years of age, who is the son of the aforesaid Amy and Wesley Bonds. The aforesaid Amy, Wesley and Wesley Bonds, Jr., reside in Mobile, Alabama. During the month of December, 1947, the aforesaid Amy Bonds was expecting to give birth to another child and for that reason the aforesaid Wesley Bonds, Jr., was by his mother and father sent to the home of the Plaintiff to stay during the Christmas Holidays and while the aforesaid Amy Bonds was awaiting the birth of her expected child, and the recovery from the said anticipated illness; that on or about December 10, 1947, the Defendant was engaged in the operation of a furniture store in Mobile, Alabama, wherein was sold, amongst other things, Christmas toys. On or about December 10, 1947, the aforesaid Wesley Bonds went into the Defendant's store in Mobile, Alabama, and bought from an employee of the Defendant in said store, a to-wit, 'push cart', also known as a scooter, being a four-wheeled toy vehicle intended for a child to ride thereon and further identified by the trade name 'Irishmail', and which said vehicle was intended to be propelled by the pulling and pushing of a lever thereon. The purchase price of the said vehicle was, to-wit $12.95 and as a part of the consideration for the purchase of the said vehicle, the Defendant, acting by and through its agents, servants, or employees, agreed with the aforesaid Wesley Bonds, to pack or crate the said vehicle for shipment by express to the plaintiff in Jackson, Alabama. Plaintiff alleges that the said vehicle was so shipped to her at Jackson, Alabama, by express, being received by her on, to-wit, December 15, 1947.

Plaintiff further alleges that the said Wesley Bonds, Jr., had been assured by his parents and grandparents, including the plaintiff, that Santa Clause would bring to him this particular type vehicle; that when she received the same in Jackson, Alabama, she hid the same from the said child and did not open the carton in which said vehicle was contained until Christmas Eve when the Plaintiff, her husband, and friends were decorating the Christmas tree after the said child had gone to bed.

The Plaintiff further alleges that when she opened the carton containing the said vehicle in the presence of her husband and friends; it was found that the said vehicle had been improperly packed by the Defendant, acting by and through its servants, agents or employees, in that the carton containing said vehicle was packed with cigarette butts, used envelopes and stationery on which there was tobacco spit, discarded kleenex on which there was nasal secretions and used kotex, on which there was evidence of human blood.

The Plaintiff alleges that she was nauseated by the sight of the aforesaid filthy condition; she was humiliated in the presence of her husband and friends; that she became violently ill and has suffered mental pain and anguish; Plaintiff alleges that all of her injuries and sufferings was caused by the negligence of the Defendant, acting by and through its agents, servants or employees, in crating the aforesaid vehicle in a manner inconsistent with human dignity.

Defendant's demurrer to the complaint contained the following grounds:

1. Because no sufficient facts are alleged to show any duty of care owing by the Defendant to the Plaintiff.

2. Because no sufficient facts are alleged to show the violation of any duty of care owing by the Defendant to the Plaintiff.

3. Because no sufficient facts are alleged to show the violation of any duty of care owing by the Defendant to the Plaintiff which proximately resulted in the injuries and sufferings complained of.

4. Because said Count fails, as a matter of law, to charge negligence on the part of the Defendant.

5. Because said Count fails to state sufficient facts to constitute negligence on the part of the Defendant.

6. Because said Count fails to state sufficient facts showing a duty owing to the Plaintiff by the Defendant, nor does said Count state sufficient facts to show a breach of duty by the Defendant.

7. Because said Count fails to allege that the injuries and sufferings of the Plaintiff were the proximate result of the alleged negligence of the Defendant.

8. Because said Count does not set forth the names of the agents, servants or employees of the Defendant who allegedly packed or crated said vehicle, nor does it appear in said Count that the names of said agents, servants or employees are unknown to the plaintiff.

9. For aught that appears in said Count, the agents, servants or employees of the Defendant who agreed with Lesley Bonds to pack or crate said vehicle for shipment had no authority to make such an agreement.

10. Because said Count fails to allege that the employee who agreed to pack or crate said vehicle was acting within the line and scope of his employment.

11. Because said Count fails to aver that the agents, servants or employees of the Defendant were acting within the line and scope of their employment.

12. Because the said Count fails to aver that the agents, servants or employees of the Defendant were acting within the line and scope of their employment in improperly packing said vehicle.

13. Because said Count fails to aver that the agents, servants or employees of the Defendant were acting within the line and scope of their employment in crating the said vehicle in a manner inconsistent with human dignity.

LAWSON, Justice.

This is a suit at law by Mrs. J. Morgan Weston against National Manufacturers and Stores Corporation.

The complaint contains one count. The defendant's demurrer having been sustained, the plaintiff suffered a nonsuit and has appealed, as authorized by the statute. § 819, Title 7, Code 1940.

The reporter will set out the complaint and the demurrer interposed thereto.

Several grounds of the demurrer take the point that the complaint does not allege that the agents, servants or employees of the defendant who agreed to pack and crate the toy vehicle and those who did crate it were acting within the line and scope of their employment. These grounds of the demurrer are not well taken. Such acts are not charged to the agents, servants or employees, but are charged to the defendant, acting by and through its agents, servants or employees. When it is so alleged, it is not necessary to aver the act was omitted or committed by the agents, servants, or employees while acting within the line and scope of their authority. When the defendant is charged with doing the act by its agents, servants or employees, this shows that the act was done in the line and scope of the agents' servants' or employees' authority. Alabama Power Co. v. Conine, 207 Ala. 435, 93 So. 22; Farmers & Merchants Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406; Atlantic Coast Line R. Co. v. Jackson, 225 Als. 652, 144 So. 813. This averment is quite different from an allegation that the act was done by defendant, its agents, servants or employees. Under such an averment it is necessary to allege that the agents, servants or employees were at the time acting in the line and scope of their employment. Alabama Power Co. v. Conine, supra.

As to the purchase of the toy vehicle, the complaint alleged: '* * * on or about December 10, 1947, the Defendant was engaged in the operation of a furniture store in Mobile, Alabama, wherein was sold, amongst other things, Christmas toys. On or about December 10, 1947, the aforesaid Wesley Bonds went into the Defendant's store in Mobile, Alabama, and bought from an employee of the Defendant in said store, a to-wit, 'push cart." While it is not expressly alleged that the purchase was made from an employee who was at the time acting within the line and scope of his employment, the language used is sufficient to justify such reasonable interpretation. In any event, we do not think the complaint was subject to demurrer for failure to so allege. The averments relating to the purchase of the toy vehicle are merely preliminary and explanatory of the circumstances upon which the plaintiff's cause of action is based.

In a complaint such as is under consideration here, it is not necessary to allege the names of the agents, servants or employees of defendant or that their names are unknown to the plaintiff. The grounds of demurrer pointing out the lack of such averments in the complaint are not well taken. Shelby Iron Co. v. Morrow, 209 Als. 116, 95 So. 370, and cases cited.

Several grounds of the demurrer take the point that sufficient facts are not alleged to show any duty of care owing by the defendant to the plaintiff or wherein defendant violated or breached any such duty. We do not think these grounds of demurrer were well taken.

It is axiomatic that to constitute actionable negligence there must be a duty to the person injured, or to a class of persons to which plaintiff belongs, and a breach of the duty, proximately resulting in the injury. Hill v. Reaves, 224 Ala. 205, 139 So. 263, and cases cited.

Appellee, defendant below, argues that the complaint in this case is based on a breach of contract; that defendant had no contract with plaintiff or for her benefit; that there was no privity between plaintiff and the defendant, and hence the complaint does not show that defendant owed pla...

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