Opinion
6 Div. 620.
May 14, 1931.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
H. H. Grooms and Coleman, Coleman, Spain Stewart, all of Birmingham, for appellant.
Where there is evidence to sustain a count on wanton or willful misconduct, a verdict and judgment for defendant on a count on simple negligence does not correct error in sustaining demurrer to a legally sufficient wanton count. McNeil v. Munson S. S. Lines, 184 Ala. 420, 63 So. 992; Culverhouse v. Gammill, 217 Ala. 137, 115 So. 105; Sington v. Birmingham R., L. P. Co., 200 Ala. 282, 76 So. 48. A count under demurrer should be construed as a whole, and the words used should receive a reasonable, as opposed to a strained, unnatural, and too refined and technical construction. Boriss Const. Co. v. Deasey, 212 Ala. 528, 103 So. 470; Camper v. Rice, 201 Ala. 579, 78 So. 923; Warren v. Crow, 195 Ala. 568, 71 So. 92. The place of the occurrence of the injury is averred with sufficient certainty in count 2. Ruffin Coal Transfer Co. v. Rich, 214 Ala. 622, 108 So. 600; Birmingham R., L. P. Co. v. Moore, 148 Ala. 115, 42 So. 1024; Western Ry. v. Mitchell, 148 Ala. 35, 41 So. 427. Counts charging wanton injury need not aver any special relation out of which the duty of care arises; it is the common duty of all not to wantonly injure the person or property of another. American Ry. Exp. Co. v. Reid, 216 Ala. 479, 113 So. 507; Southern R. Co. v. Gantt, 210 Ala. 383, 98 So. 192; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469. A breach of duty owing to plaintiff by defendant may be averred by way of conclusion. Feore v. Trammel, 212 Ala. 325, 102 So. 529; Birmingham Ry., Light Power Co. v. Littleton, 201 Ala. 141, 77 So. 565; Ala. Fuel Iron Co. v. Bush, 204 Ala. 658, 86 So. 541; Mobile Light R. Co. v. Ellis, 209 Ala. 580, 96 So. 773. A mere allegation that one injured another is sufficient, unless there is language in the same count which does not justify such a conclusion. Birmingham Ry., Light Power Co. v. Barrett, 179 Ala. 274, 60 So. 262; St. Louis S. F. R. Co. v. Dennis, 212 Ala. 590, 103 So. 894; Bradley v. Louisville N. R. Co., 149 Ala. 545, 42 So. 818. Negligence may be averred in a very general way, and, where a causal connection between the injury and the negligence is shown, the quo modo need not be set out. Vulcan Rivet Corp. v. Lawrence, 214 Ala. 378, 108 So. 3; Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237. An averment of proximate cause is sufficient which shows that the negligence either caused or reasonably contributed to the injury complained of. Curry v. Southern R. Co., 148 Ala. 57, 42 So. 447; Western Ry. Co. v. Lazarus, 88 Ala. 453, 6 So. 877; Bugg v. Mitchell, 20 Ala. App. 555, 103 So. 713. The averments as to wantonness in count 2 were sufficient as against the demurrer. Ala. Power Co. v. Bass, 218 Ala. 586, 119 So. 625, 63 A.L.R. 1; Garth v. Ala. Traction Co., 148 Ala. 96, 42 So. 627; Alabama G. S. R. Co. v. Chapman, 80 Ala. 615, 2 So. 738; Davis v. Drennen Co. Department Store, 189 Ala. 683, 66 So. 642; Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Birmingham R. L. P. Co. v. Landrum, 153 Ala. 194, 45 So. 198, 127 Am. St. Rep. 25; Louisville N. R. Co. v. Anchors, 114 Ala. 492, 22 So. 279, 62 Am. St. Rep. 116; Highland Ave. B. R. Co. v. Robinson, 125 Ala. 483, 28 So. 28; Southern R. Co. v. Benefield, 172 Ala. 588, 55 So. 252, 35 L.R.A. (N.S.) 420; Alabama Great Southern R. Co. v. Davenport Co., 195 Ala. 368, 70 So. 674; Louisville N. R. Co. v. Smith, 163 Ala. 141, 50 So. 241; 49 C. J. 97; 42 C. J. 887; Blashfield on Auto. 695. A witness with knowledge of facts can testify that certain things can be seen from a certain point, or the distance he can see from a certain point. Morgan Hill Paving Co. v. Fonville, 222 Ala. 120, 130 So. 807; Id., 218 Ala. 566, 119 So. 610; Republic Iron Steel Co. v. Passafume, 181 Ala. 463, 61 So. 327; Alabama G. S. R. Co. v. Linn, 103 Ala. 134, 15 So. 508. It was error to admit evidence by appellee that he did the most effective things to stop the car. Taylor v. Lewis, 206 Ala. 338, 89 So. 581; Birmingham R. E. Co. v. Jackson, 136 Ala. 279, 34 So. 994; Birmingham S. R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334. A witness cannot testify as to the effect of an occurrence on his mind or sensibilities. Western Union Tel. Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534; Louisville N. R. Co. v. Sharp, 171 Ala. 213, 55 So. 139; Walling v. Fields, 209 Ala. 389, 96 So. 471; Sov. Camp v. Hutchinson, 217 Ala. 71, 114 So. 684; Bowen v. State, 217 Ala. 575, 117 So. 204; Interstate Amusement Co. v. Martin, 8 Ala. App. 481, 62 So. 404. It was error to allow the injection into the trial that plaintiff had received compensation from his employer or the insurance carrier. Code 1923, § 7587; Long v. Kansas City, M. B. R. Co., 170 Ala. 635, 54 So. 62; Coffman v. Louisville N. R. Co., 184 Ala. 474, 63 So. 527; Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281. When an automobile is lawfully standing on the highway and is struck by a passing vehicle, a prima facie case of negligence is made out. Swartz on Auto. Cas. 297; Blashfield on Auto. 656.
Ross, Bumgardner, Ross Ross and Huey, Welch Stone, all of Bessemer, for appellee.
A complaint must be sufficiently definite as to place of injury to afford defendant an opportunity of knowing the location of the place of alleged injury. Alabama Great Southern R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125; Louisville N. R. Co. v. Whitley, 213 Ala. 525, 105 So. 661; Western Ry. v. Turner, 170 Ala. 643, 54 So. 527. The second count of the complaint is insufficient in its allegations of willful, intentional, or wanton negligence. Feore v. Trammel, 212 Ala. 325, 102 So. 529. At any rate a verdict for defendant under the simple negligence count would cure any error in sustaining demurrer to the wanton count. McNeil v. Munson S. S. Lines, 184 Ala. 420, 63 So. 992; Erwin v. Birmingham R., L. P. Co., 200 Ala. 557, 76 So. 915. The evidence was not sufficient to show wantonness. Birmingham R., L. P. Co. v. Norton, 7 Ala. App. 571, 61 So. 459; Central of Georgia R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Mobile Electric Co. v. Fritz, 200 Ala. 692, 77 So. 235. Where certain indebtednesses were paid by or charged to another person, such items could not be collected by the plaintiff. Fuller v. Gray, 124 Ala. 388, 27 So. 458; Travis v. Louisville N. R. Co., 183 Ala. 415, 62 So. 851. Testimony pertaining to the insurance carrier of plaintiff's employer was admissible to show interest or bias of the witness. Drummond v. Drummond, 212 Ala. 242, 102 So. 112.
The suit was for damages for personal injury; went to the jury on count 1, and judgment was for the defendant. The defendant pleaded the general issue, in short by consent. Demurrer was sustained to the wanton count No. 2. There was motion for a new trial that was overruled.
The difference between simple negligence and wantonness as a proximate cause of injury is well understood. If there was evidence to sustain a count based on the latter theory, a verdict and judgment for defendant on the simple negligence count did not correct error, if such there was, in sustaining demurrers to a sufficient wanton count. Culverhouse v. Gammill, 217 Ala. 137, 115 So. 105; Sington v. B. R., L. P. Co., 200 Ala. 282, 283, 76 So. 48; McNeil v. Munson S. S. Lines, 184 Ala. 420, 63 So. 992.
Conceding, without deciding, that the count was sufficient in law and not subject to demurrer (Feore v. Trammel, 212 Ala. 325, 102 So. 529) otherwise than as to the "place where," the question therefore recurs, Was the place of the accident sufficiently declared? Western Railway of Alabama v. Turner, 170 Ala. 643, 54 So. 527. The lack of sufficient averment as to this fact is challenged by appropriate grounds of demurrer. The authorities are collected and reviewed in Bugg v. Green, 215 Ala. 343, 110 So. 718, as to the sufficiency of a count claiming damages for the killing of stock, and required certainty "as to place" in order to give the required information to the defendant to enable a proper preparation for the defense. Louisville N. R. Co. v. Whitley, 213 Ala. 525, 105 So. 661; Western Railway of Ala. v. Turner, supra; Alabama Great Southern R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125; Weller Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A. (N.S.) 1106; Posey v. Hair, 12 Ala. 567.
In the case at bar the only allegation of "place where" is "on a public street in Jefferson county, Ala., to-wit, Valley Road, in or near the City of Fairfield."
The suit in Ruffin Coal T. Co. v. Rich, 214 Ala. 622, 108 So. 600, 602, was for personal injury, and the declaration employed as to the place where was "along Second avenue, at or near Fourth street, in the city of Birmingham," which was held sufficient. Birmingham Railway, Light Power Co. v. Moore, 148 Ala. 115, 42 So. 1024; Birmingham Railway, Light Power Co. v. Fox, 174 Ala. 657, 666, 56 So. 1013; Armstrong, Adm'x, v. Montgomery Street Ry. Co., 123 Ala. 233, 26 So. 349; Liverett v. Nashville, Chattanooga St. L. Ry., 186 Ala. 111, 65 So. 54.
Though count 2 charged wantonness in the manner done, the place where was unimportant as judging defendant's conduct as is set up. The demurrer was not properly sustained; the complaint was not subject to objection of uncertainty in this respect. The other grounds of demurrer worthy of consideration are:
"For that wilful, wanton or intentional conduct is alleged therein as the mere conclusion of the pleader unsupported by a sufficient statement of facts to warrant the conclusion."
"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 plaintiff."
In Southern Railway Co. v. Weatherlow, 153 Ala. 171, 176, 44 So. 1019, 1021, the court said: "The charge is, not that the injury was wantonly inflicted, but that the defendant's servants 'wantonly and recklessly propelled its said engine and tender on its track over a certain public crossing or street,' etc. It omits to charge knowledge on the part of the defendant's servants of the conditions and surroundings existing at the time and place, and a consciousness on their part that such conduct would likely or probably result in injury. The facts stated constituted the count nothing more than a count in simple negligence. Lee's Case, 92 Ala. 262, 9 So. 230; Anchors' Case, 114 Ala. 492, 22 So. 279, 62 Am. St. Rep. 116; M. C. R. R. Co. v. Martin, 117 Ala. 367, 23 So. 231; L. N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; L. N. R. R. Co. v. Mitchell, 134 Ala. 261, 32 So. 735."
And in Woodward Iron Co. v. Finley, 189 Ala. 634, 636, 66 So. 587, is the declaration: "Under the authority of Sou. Ry. Co. v. Weatherlow, 153 Ala. 171, 176, 44 So. 1019; Neyman v. A. G. S. R. R. Co., 172 Ala. 606, 55 So. 509, Ann. Cas. 1913E, 232; B. R., L. P. Co. v. Brown, 150 Ala. 327, 43 So. 342, among others cited therein, count 5 of this complaint, which the reporter will set out, was subject to the demurrer interposed. It was erroneously overruled. Wanton or intentional misconduct in doing an act is not the legal equivalent of that character of misconduct inflicting an injury upon another. This count, without averring the engineer's knowledge that plaintiff, a licensee, was on the car, alleges that the engineer 'wantonly, or willfully, or intentionally wrecked and derailed said tram cars upon which plaintiff was riding into the said mine.' Obviously, this averment characterized the act, not the injury, as wanton or willful."
In Alabama Great Southern Railroad Co. v. Smith, 191 Ala. 643, 644, 68 So. 56, 57, the court said: "The averments of the count only characterizes the act or omission, 'causing or permitting a collision,' as willful or wanton, and then describes the effect of the act or omission, which alone is characterized as having been done or suffered willfully or wantonly. This effect may have ensued, as doubtless it did, from the act or omission of the character the pleader avers, and yet the operative so charged may not have intended injury to the plaintiff, or may not have been consciously indifferent to the known consequences to probably flow from the act or omission. The injury is shown by the count to have been consequential only, not direct or immediate. It is not averred that, in causing or permitting the collision, the defendant's servant intended to overturn the car of coal on plaintiff or intended in any wise to injure plaintiff."
See, also, Jackson v. Vaughn, 204 Ala. 543, 544, 86 So. 469, 470, and authorities, as to the averment of the quo modo of wanton or willful injury by the defendant to plaintiff. Of this it is there said: "For this reason count 2 comes within the class of condemned counts, for insufficiently attempting to set forth the facts relied upon to show wanton or willful injury, when the facts averred do not support the conclusion of the pleader as to such wantonness or willfulness. Knight v. Tombigbee Valley R. R. Co., 190 Ala. 140, 67 So. 238; Yarbrough v. Carter, 179 Ala. 356, 60 So. 833."
The demurrer was properly sustained to count 2 for the intentional misconduct that is averred was of the act and not the injury. See, also, Alabama Power Co. v. Gooch, 221 Ala. 325, 128 So. 793.
We come to the decision of questions presented on the trial had on the simple negligence count. There was no error in the refusal of charges we denominate A, B, C, and D, since they were covered by the oral charge. The issues of fact were properly submitted to the jury, and there was no error in the refusal of the general affirmative instructions requested. The locus in quo at the time of the injury, the condition of the street and the weather, the several statements as to the speed at which defendant approached, and the location and speed of the street car, its visibility as or not affected by the several parked cars and the approaching street car, what defendant did or omitted to do in the premises, were all important facts that entered into the material questions submitted and decided by the jury.
The several assignments of error predicated on the giving for defendant charges A-34, 37, 38, 39, 40, and 41 are now to be considered. This court has held that, where certain items of expense have been paid and no expenditure by, or liability attaching to, plaintiff, such expense could not be charged and collected by way of additional damages. Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276; Travis v. L. N. R. Co., 183 Ala. 415, headnote 9, 62 So. 851. The charges were predicated on phases of evidence admitted without objection, and were not the unnecessary injection of the issue vel non of compensation insurance by the employer of plaintiff, as insisted by appellant. Moreover, the court had likewise instructed the jury in the oral charge, and no exceptions were reserved as to such instructions.
The several objections and exceptions to the introduction of evidence have been considered; that is to say, that the witness Shadrick was sought to be asked: "How far could you see then from the crest of that rise on down towards Bessemer?" The question was competent under Morgan Hill Paving Co. v. Fonville (Ala. Sup.) 130 So. 807; Republic I. S. Co. v. Passafume, 181 Ala. 463, 61 So. 327; Alabama Great Southern R. Co. v. Linn, 103 Ala. 134, 15 So. 508. However, the witness had testified that he saw the wrecker there after the wrecked car; that it was 200 yards to the crest of the rise from the wrecked car; that, after you proceed beyond the rise, the track starts gradually down; from the crest of the hill to the Dodge car was practically straight, and on some distance below and then a gradual curve from approximately the intersection of the street; that he judged about 300 feet from the crossing, and could see from 75 feet on further beyond the street intersection down to this; that the wrecked car was in the curve; that witness judged it was something like 300 feet from where the Dodge was wrecked to where it would be out of sight to witness on his car; that you could see those cars from the intersection or cross street all the way down to Hillside drive for about 400 feet from the cross street to Hillside drive. The witness gave the facts on which such visibility depended, and there was no reversible error committed in the ruling above indicated.
There was no error in permitting the witness to testify whether or not he was excited when he saw the situation. It called for a physical fact that could not have been better expressed. Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 560, 563, 122 So. 686; Gassenheimer v. State, 52 Ala. 313.
There was no error in overruling appellant's objection to the following question propounded to the appellee, S. Palmer Keith: "I will ask you to state whether or not you did on that occasion the most effective things to stop your car?" to which action of the trial court the appellant then and there duly reserved an exception. It was the issue being tried and to be answered by the verdict from the evidence and reasonable inferences to be drawn. Taylor v. Lewis, 206 Ala. 338, 89 So. 581; Birmingham Stove Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Sommer v. Martin, 55 Cal.App. 603, 204 P. 33; Landry v. Hubert, 100 Vt. 268, 137 A. 97; Johnston v. Bagger, 151 S.C. 537, 149 S.E. 241; Stinson v. Payne, 231 Mich. 158, 203 N.W. 831. However, the witness was an experienced driver. It should be stated that an expert duly shown to be qualified may give an opinion by way of conclusion from a specific knowledge of the facts or in response to hypothetical questions. Alabama G. S. R. Co. v. Linn, supra; Burton Sons v. May, 212 Ala. 435, 440, 441, 103 So. 46; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 581, 119 So. 610; Id. (Ala. Sup.) 130 So. 807; Choate v. Southern Ry. Co., 119 Ala. 611, 24 So. 373; Alabama G. S. R. Co. v. Burgess, 119 Ala. 555, 25 So. 251, 72 Am. St. Rep. 943; Reaves v. Maybank, 193 Ala. 614, 621, 622, 69 So. 137, and authorities.
When all of the evidence is considered, it shows that defendant had driven automobiles for fifteen years, and from this long experience in driving cars, his knowledge of the condition of his car, and that of the street at the time in question, he had the required knowledge and experience in the matter that was not possessed by one not so experienced; he was therefore qualified and properly allowed to answer the foregoing question.
There was no error in overruling motion for new trial.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.