Opinion
6 Div. 372.
March 30, 1939. Rehearing Denied May 4, 1939.
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Erle Pettus, of Birmingham, for appellant.
The complaint properly charges wanton or wilful negligence. It was not subject to demurrer for failure to particularize in what the wantonness consisted. The charge of a negligent or wanton or wilful injury may be sufficiently made in the most general terms. Southern R. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; Birmingham Ry., L. P. Co. v. McLeod, 9 Ala. App. 637, 64 So. 193; Birmingham Ry., L. P. Co. v. Brown, 150 Ala. 327, 330, 43 So. 342; Neyman v. Alabama G. S. R. Co., 172 Ala. 606, 610, 55 So. 509, Ann.Cas.1913E, 232; Davis v. Drennen Co. Dept. Store, 189 Ala. 683, 685, 66 So. 642.
Smith, Windham, Jackson Rives, of Birmingham, for appellees.
The demurrer was properly sustained as to count two of the complaint in that the said count does not aver and properly advise the defendants of the res gestae of the injury. Doullut Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662; Birmingham Ry., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263; Seaboard Air Line R. Co. v. Mobley, 194 Ala. 211, 69 So. 614; Mobile L. R. Co. v. Portiss, 195 Ala. 320, 70 So. 136.
This appeal is by the plaintiff on the record, without bill of exceptions, from a judgment in favor of the defendants, entered on the verdict of the jury finding the issues in favor of the defendants.
The complaint consisted of three counts, numbered "One" "Two" and "Three." The court sustained the defendants' demurrer to counts 2 and 3, and the trial proceeded on count 1, and the plea of the general issue pleaded in short by consent with leave, etc.
The assignments of error predicated on ruling of the court on the demurrer to said counts 2 and 3 present the only questions on this appeal. Said counts are subject to a common demurrable defect, and the demurrer aptly points out said defect; they fail to aver what instrumentality, under the control of defendants' agent or servant, caused the injury. Doullut Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662; Birmingham Ry., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263.
The ruling of the court was free from error.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.