Birmingham Railway, Light & Power Co. v. Abbott

60 So. 970 | Ala. Ct. App. | 1912

PER CURIAM.-

The reporter, in reporting this case, will set out the first and third counts of the complaint and the demurrers filed to said counts.

1. The first count of the complaint is plainly a count in trespass. In an action of trespass it is necessary for the evidence to show that the plaintiffs7 possession was involved, and for that reason the evidence must show, to justify a recovery by the plaintiff, that the plaintiff, at the time of the trespass, was in the actual or constructive possession of the property trespassed upon. When we say constructive possession, we. mean such, a constructive possession as gives to the plaintiff the immediate right to the actual possession, and not that constructive possession which the law gives him, for instance, through a tenant. . Under our statutes a complaint Avhich shows that the lands belonged to or were in the possession of the plaintiff at the time of the trespass sufficiently meets the requirements of the law, provided it is not defective for some other reason. — Code 1907, § 5382, form 26. (The code form for complaints in actions of trespass deos not, however, in the slightest degree affect the above rule as to the evidence in such cases.)

The count now under consideration alleges that the plaintiff, “with his family, was residing in Birmingham, Alabama, to wit, at 812 First avenue, West End,” and that “defendant’s servant or agent, acting within the line and scope of his authority as such, wrongfully entered upon said premises and in said residence,” etc. This count therefore shows that the trespass was committed upon plaintiff’s residence. The word “residence” is synonymous with the words “home” or “dwelling.”— Reg. v. Hammond, 17 O. B. 772; Town of North Yarmouth v. Town of West Gardner, 58 Me. 207, 4 Am. Rep. 279; Words and Phrases, title “Residence.”

A court, in passing upon the question as to the sufficiency vel non of a complaint or a plea, should give to the words used by the pleader, unless such words possess some peculiar, technical meaning, when considered in the connection in which they are used, their ordinary import; and when a complaint is demurred to, mere hypercritical objections not going to the merits of the cause of action should be disregarded. The law is reasonable, and all that it requires of a complaint is that it shall state in plain and simple language facts showing a cause of action, and inform the defendant as to' what is claimed. — Western Union Telegraph Co. v. Snell, 3 Ala. App. 263, 6 South. 864.

A man’s home is his abiding place — a place of which,, out of necessity, he is possessed — and in our opinion, the first count of the' complaint shows with sufficient certainty that the plaintiff was in possession of the residence at the time of the alleged trespass. — Grisham v. Bodman, 111 Ala. 194, 20 South. 514; Southern Ry. Co. v. McEntire, 169 Ala. 42, 53 South. 158.

As the unlawful invasion of the plaintiff’s possession of the residence is the gravamen of the first count, we are clearly of the opinion that it was not subject to the appellant’s demurrer.

2. The third count is an action of trespass on the case. The gravamen of this count is the failure of the appellant to furnish the appellee with lights at a time when, it is alleged, the appellant owed the appellee the duty to furnish such lights. In other words, the count is for damages which appellee alleges he suffered because of a breach of duty which the appellee claims the appellant owed to him. It appears from this count that the appellant, under a franchise from the city of Birmingham, at the time of the alleged wrong, “was engaged in furnishing electric lights for lighting residences in said city, and was engaged in furnishing plaintiff, at his. residence in said.city, to wit, 812 First avenue, West End, with electric lights in said residence, and defendant had undertaken to continue to furnish plaintiff electric lights in said residence for a time to and including said 27th day of June, 1910, and it became and was. the duty of the defendant to continue to furnish said lights in said residence for said time;” but the count nowhere alleges that the “undertaking” on the part of appellant to continue to furnish said lights was for a valuable consideration. The franchise referred to in this count was evidently a contract made by appellant as a public service corporation with the city of Birmingham, whereby it was granted the privilege of doing business in said city, and of furnishing electric lights to such residents of the city as would pay it for its services. It cannot be claimed that this count, by any of its averments, places the duty upon appellant of furnishing all of the residences of Birmingham with lights. The best that can be said of it in this regard is that the count shows that the appellant, under its contract with the city of Birmingham, is under the duty of serving such residents of the city as see proper, for a valuable consideration, to engage its services. The “undertaking” of appellant to supply the appellee with lights is not averred to be in writing, and, to use the language of the Supreme Court of Alabama, “applying the rule of construing pleading most strongly against the pleader, we are constrained to hold that the contract was an unwritten one, and imports no consideration.” — Newton et al. v. Brock, 134 Ala. 269, 32 South. 722.

“When,” says Denson, J., in Southern Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35, “the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule it is sufficient if the complaint aver the facts out of which the duty to act springs, and that the defendant negligently failed to do and perform. It is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty.” — Leach v. Bush, 57 Ala. 145.

The count now under consideration contains two material averments, viz., that the appellant owed the appellee a duty, and that the appellant failed to perform that duty. The duty, according to the averments of this count, which the appellant owed the appellee was to furnish lights to appellee’s residence. It failed, according to the averments of this count, to perform that duty, because, says the count, appellant “wrongfully, on said day, caused said' lights to be cut out, or otherwise to cease to be furnished, at said residence.” If there was no duty to furnish the lights, then appellee’s cause of action, so far as this count is concerned, fails. The wrong complained of is predicated upon the duty to furnish lights. In the case of Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 South. 170, the Supreme Court says, through Mayfield, J., “The facts or circumstances from Avhich the law will imply the duty should be stated.” — 14 Ency. Pl. & Pr. 331.

“A general averment that it Avas the duty of the defendant to do the thing .alleged to have been omitted is insufficient.” — T. C., I. & R. Co. v. Smith, supra; 14 Enc. Pl. & Pr., supra.

Undoubtedly the gravamen of this count is for a breach of duty growing out of a contract, and, to use the language of Tyson, C. J., in Newton v. Brock, 134 Ala. 69, 32 South. 722: “It is clear, under the allegations of the complaint, that appellant was under no duty to perform the obligation, out of which its duty is alleged to have arisen, independent of a contract. In other words, no such duty, the breach of Avhich is complained of, originated, either in a general obligation of law, or in an obligation thrown upon it by reason of its vocation. So, then, if the duty of performance Avas upon it at all, it must have been imposed by contract. This being true, the contract must be a binding one, and this must be shown by the allegations of the complaint. To this end it is just as important to state expressly the consideration for defendant’s promise as if the action were in assumpsit.” While this count alleges that the appellant was engaged in furnishing appellee, at his residence, Avith electric lights, and had undertaken to continue to furnish said lights, it does not allege that the undertaking was based upon a valuable consideration.

“The decisions,” observes Lord Campbell, “show that the allegation of duty in a declaration is, in all cases, immaterial, and ought never to be introduced; for, if the particular facts set forth raise the duty, the allegation is unnecessary, and, if they do not, it will be unavailable. If the particular facts, stated in the declaration do not raise the duty, it cannot be established by other facts not stated. The declaration must, stand or fall by the facts stated” — T. C., I. & R. Co. v. Smith, supra; Breese v. Trenton R. R. Co., 52 N. J. Law, 250, 19 Atl. 204; 2 Add. Torts, § 1338.

The mere fact that appellant is a public service corporation does not preclude it, where the discriminatiORis solely at the company’s expense, from supplying water to some favored individual Avithout compensation, unless thereby the rights of the consumers of appellant’s water generally are infringed upon.- — State v. Birmingham Waterworks Co., 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, 137 Am. St. Rep. 69, 20 Am. Cas. 951.

We find no decision qualifying the decision of the Supreme Court in Newton v. Brock, 134 Ala. 269, 32 South. 722, and we find nothing differentiating the count now under consideration from the complaint in that case. In this case the defendant is a public service corporation which, under the law, might have “engaged”to furnish light to appellee’s residence without consideration. — State v. Birmingham Waterworks Co., supra; T. C., I. & R. Co. v. Smith, supra. In the case of Newton v. Brock, supra, the defendants were “engaged in the undertaking business in Birmingham, Ala., and as such were holding themselves out for the preparation of bodies for burial and shipment” for the public, and, to use the language of the Supreme Court in that case, “for aught appearing, the promise of the defendants [to prepare a body for burial] may have been gratuitous,” etc. In that case, as in the count now under consideration, there was no allegation that the “engagement” was upon a valuable consideration; and the Supreme Court, in holding the complaint bad on demurrer, said: “The want of a statement of the consideration of a promise is a capital defect in a declaration, not to be supplied by intendment, but by amendment.”

The decisions from which we have above quoted, it seems to us, conclusively settle the question now under discussion. They declare, not what the law should be, but what the law of the state is; and under those decisions, which are binding upon this court, the third count —of the complaint was subject to appellant’s demurrer, and the trial court committed reversible error in overruling the demurrer to that count.

Reversed and remanded..

Note. — The foregoing opinion was prepared by Judge de Graeeenried, while he was a judge of this court, and is adopted by the court.