William E. Harden, Inc. v. Harden

• Decision Date: 21 May 1940
• Docket Number: 4 Div. 563.
• Citation: 29 Ala.App. 411,197 So. 94
• Parties: WILLIAM E. HARDEN, INC., v. HARDEN.
• Court: Alabama Court of Appeals

197 So. 94

29 Ala.App. 411

WILLIAM E. HARDEN, INC., v. HARDEN.

4 Div. 563.

Court of Appeals of Alabama

May 21, 1940

Rehearing Denied June 25, 1940.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Action for personal injuries and property damage, resulting from a collision by the automobile of defendant with that of the plaintiff, by C. R. Harden against William E. Harden Incorporated. From a judgment for plaintiff, defendant appeals.

Affirmed.

Assignments that court erred in admission of illegal testimony over objections and exceptions, but not pointing out the error complained of, were not considered on appeal.

The complaint is as follows:

"The plaintiff claims of the defendant One Thousand ($1,000.00) Dollars damages for that whereas, on to-wit, the 29th day of December, 1938, Plaintiff was riding in or driving a 1931 Chevrolet automobile, the property of the plaintiff going North from Brewery Lane onto the Old Opelika Road, a Public Highway or Street, in Phenix City Alabama, Northern Division of Russell County, Alabama, where he had a right to be, and while so driving or operating his said Chevrolet automobile, Cleve Howard, an agent, servant or employee of the Defendant, while acting within the line and scope of his authority and employment negligently drove a Ford Coupe, 1930 Model 'A' or 1931 Model 'A' automobile, the property of the said Defendant, at a high rate of speed East on Old Opelika Road, which extends into South Railroad Street, Phenix City, Alabama, a public highway or street in the Northern Division of Russell County, and over, onto or against Plaintiff's automobile and as a proximate cause and direct consequence thereof Plaintiff was severely injured, jarred, bruised and shocked, made sore, caused to suffer great mental and physical pain and still suffers, was internally injured and made sore, and permanently injured, lost much valuable time from work, made unable to work, and greatly inconvenienced. Plaintiff's said automobile was struck on the left side, both front wheels demolished, radiator mashed, both front lights knocked out, both glasses in front doors knocked out, hood and body crushed, chassis knocked out of line, axles bent, motor injured and otherwise injured and demolished and made useless and Plaintiff caused to lose the use of said automobile, all to the damage of the Plaintiff as aforesaid.

"Wherefore, Plaintiff sues.

"Count Two

"Plaintiff adopts all of Count One as a part of Count Two except the word 'negligently' which he expressly strikes from this Count and inserts in lieu thereof the following words, namely: 'Wantonly or wilfully or intentionally or wrongfully.' "

Defendant demurred to the complaint upon these grounds:

"1. That no cause of action is stated against this Defendant.

"2. That the Plaintiff fails to allege the place where said accident is alleged to have occurred with sufficient certainty to put this Defendant on notice or inform of the location and whereabouts thereof in order that he may answer the same.

"3. That the Plaintiff fails to allege any duty owed by this defendant to said Plaintiff.

"4. That the Plaintiff fails to allege that he was operating an automobile within the speed limits fixed by law for the operation of automobiles at the time of said alleged accident.

"5. For that it is not alleged that the Plaintiff wilfully, wantonly, intentionally and wrongfully injured the Plaintiff.

"6. For that it is not alleged that the Defendant, intentionally or wrongfully injured the Plaintiff.

"7. For that wilful, wanton or intentional conduct as alleged therein is a mere conclusion of the pleader, unsupported by a sufficient statement of facts to warrant the conclusion.

"8. For that it is not made to appear therefrom that Defendant in the acts of his that are complained of, was conscious of the probable peril of plaintiff and That Defendant's said acts could and probably would result in injury to the Plaintiff."

Assignments of error 5 and 6 are as follows:

"5. The Court erred in permitting the several witnesses to testify over the objections and exceptions made to said testimony by the Defendant during the trial of said case as appears in the record.

"6. The Court erred in admission of illegal testimony over the objections and exceptions made by the Defendant in this cause. (See pages 9 to 17, inclusive of the record wherein the testimony of witnesses C. R. Hardin, W. C. Horne, E. A. Edge, Dewey Perkins and W. L. Cannon appears and also on page 23 of the Record where the testimony of Fred Whitted appears.)"

Roy L. Smith, of Phenix City, and Henry Pease, of Columbus, Ga., for appellant.

A. L. Patterson, of Phenix City, for appellee.

SIMPSON, Judge.

Appellee brought suit against appellant, to recover damages to person and property alleged to have been sustained by him as the proximate result of the negligent operation of an automobile owned by the defendant corporation and being driven by one Cleve Howard along and over a public street of Phenix City, Alabama, on or about the 29th day of December 1938.

It was alleged in the complaint that Cleve Howard was, at the time and place specified, the agent, servant or employee, of the defendant corporation, and acting within the line and scope of his authority or employment.

The complaint contains two counts, one charging simple negligence, and the other charging wanton, or wilful and intentional negligence. Insofar as the pleadings are concerned, the case was submitted to the jury upon the complaint and defendant's pleas of the general issue, and the general issue in short by consent, etc. The jury returned a verdict for plaintiff for the sum of $250 damages, and in accordance therewith the court pronounced and entered judgment against defendant for said sum, together with costs of suit.

The defendant filed its motion for a new trial, which was overruled, and here brings its appeal from the final judgment, and from the judgment of the lower court upon the motion for a new trial.

There are six assignments of error upon the record, in the first of which appellant challenges the correctness of the judgment of the lower court in overruling defendant's demurrer to the complaint.

It has long been a settled rule of pleading in this State, that an averment, that a specified injury was inflicted by reason of the negligence of the defendant, is a good and sufficient charge of simple negligence; and, that a specified injury was sustained as the proximate result of the wanton, or wilful and intentional negligence of the defendant is a good and sufficient charge of wanton negligence, and this without setting forth the facts showing the wanton misconduct. On the other hand, when the pleader attempts to set out the facts, or quo modo, of the negligence charged, then these facts must in law constitute in the first instance a case of simple negligence, and in the second, a case of wanton or willful negligence. Jinright v. Archer, 16 Ala.App. 450, 78 So. 713; Taxicab & Touring Car Co. v. Cabiness, 9 Ala. App. 549, 63 So. 774; J. C. Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461; St. Louis & S. F. R. Co. v. Dennis, 212 Ala. 590, 103 So. 894; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469.

Count 1 of plaintiff's complaint states a good and sufficient case of simple negligence. Plaintiff's undisputed testimony shows that he sustained actual damages equalling, or exceeding the sum of $250, the amount of the verdict returned by the jury in favor of the plaintiff, and which verdict was, therefore, responsive to count 1 of the complaint. If it be conceded that count 2 of the complaint was bad, and that the defendant's demurrer thereto should have been sustained, still the trial court's error, if such it be, in overruling the demurrer was harmless and the judgment appealed from should be affirmed. Morrison v. Clark, 196 Ala. 670, 72 So. 305.

It is made to appear, from a careful reading of the evidence, that the disputed point upon trial was, whether or not the said Cleve Howard, driver of the defendant's car, was, at the time of the collision, acting as its agent and in the line and scope of his authority. We are, therefore, of the opinion from the entire record that the defendant was not injuriously affected in his substantial rights by the overruling of the demurrers to the count seeking to charge wanton or willful injury. Morrison v. Clark, supra; American Bankers' Ins. Co. v. O'Neal, 25 Ala.App. 559, 150 So. 562.

Under the second and fourth assignments of error, appellant complains because the trial court refused to charge the jury to return a verdict in its favor.

The well established rule of law, applicable to these assignments of error, is, that where the evidence is in conflict, or where conflicting inferences may reasonably be drawn from the evidence, or where the evidence contains conflicting tendencies, then a jury question is presented, and the general affirmative charge cannot be given, nor a verdict directed. Among the cases in point are: Jefferson County B. & L. Ass'n v. Weaver, 25 Ala.App. 189, 143 So. 193; Ode Grimes v. State, 24 Ala.App. 378, 135 So. 652; Williams v. John C. Webb & Sons, 235 Ala. 433, 179 So. 528, 529, 530; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

On the trial of this case below it was clearly established that the brakes on the Ford Model A Coupe automobile, being driven by Cleve Howard, were defective and that because of these defective brakes the collision between said Ford Coupe and plaintiff's automobile, then being driven by plaintiff occurred. At the time and place of this collision Cleve Howard was driving said Ford Coupe along and over a public street of the City of Phenix City, Alabama. The public streets of the...