74 So. 156 | Ala. Ct. App. | 1916
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *508
(This case was reviewed by the Supreme Court on certiorari to the Court of Appeals, and the writ denied. See Ex parteDavenport, 198 Ala.,
Action by Hattie Davenport against the J.T. Camp Transfer Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Application for rehearing overruled.
The complaint charges that upon a certain day defendant was in charge or control of a team of horses attached to a vehicle being driven along the streets of the city of Birmingham. The plaintiff was driving on said street in a vehicle drawn by a horse, when defendant's team ran away or became unmanageable, and ran upon or against, or caused the vehicle to which they were hitched to be run upon or against, the vehicle in which plaintiff was driving, inflicting personal injuries upon plaintiff, which are *509 set out in extenso, and inflicting injuries upon her buggy. It is then averred that defendant was guilty of negligence in or about the management, control, operation, or equipment of said team and vehicle, and as a proximate consequence of said negligence plaintiff suffered said injury and damage. The following charges were refused to defendant:
(5) Defendant is not liable in this action, unless you find from the evidence that its driver is guilty of some negligence in the management of the team, and that this negligence was the proximate cause of plaintiff's injury.
(6) Defendant is not liable to plaintiff in this action, unless you find from the evidence that its driver did something which a reasonably prudent person would not have done, or failed to do something which a reasonably prudent person would do, under the circumstances, in the management of the team, and that this act or omission proximately caused plaintiff's injury.
(8) The mere fact that the wagon and team which ran into plaintiff's buggy belonged to defendant does not authorize the jury to return a verdict in favor of plaintiff, but before you can return a verdict in favor of plaintiff, you must be reasonably satisfied from the evidence that defendant's driver was guilty of some negligence in the management of the team which proximately caused plaintiff to be injured.
(9) You are not authorized to award plaintiff any damages on account of the injury to her buggy, unless you find from the evidence that defendant's driver in charge of the team was guilty of some negligence in the management.
(11) The driver in charge of the team is only required to exercise due care in the management of the same, such care as a reasonably prudent person would exercise under the circumstances, and if they find from the evidence that defendant's driver exercised such care in the management of the team, then they are not authorized to find that he was guilty of any negligence, and in that event the jury should return a verdict in favor of defendant.
(7) If you find from the evidence that defendant's wagon and team, while uncontrolled, ran into plaintiff's buggy and injured her, and that defendant's driver could not control said team or prevent it from running into plaintiff's buggy, and injuring her, by the exercise of ordinary care, then you will find for defendant. *510
(12) You are not authorized to find a verdict in favor of plaintiff on account of the character or disposition of the team which ran into plaintiff's buggy and caused her injury.
(A) Unless you find from the evidence that the team was of a dangerous disposition or vicious character, and this was known to plaintiff, you cannot consider the character of the team for any purpose whatever.
(B) The jury cannot consider the fact, if it be a fact, that a man was killed on Morris avenue by a team belonging to J.T. Camp, for the purpose of showing liability on defendant. The appellee sued the appellant to recover damages for personal injuries. as well as for damages to her buggy, alleged to have been done when a team belonging to the defendant was alleged, by reason of the defendant's negligence, to have run into her buggy, in which she was riding. The only plea was the general issue.
It is urged by the appellant that the only issue of negligence in the case is whether the driver was negligent in the management or control of the team, and attempted to so limit the issues to be submitted to the jury by several written charges, which were refused, and separately assigned as error on the motion for a new trial.
The appellee contends that under the pleadings and proof, the driver's negligence in the management or control of the team was not the only issue, and that the defendant's negligence in the matter of "the equipment" of the team and vehicle and in using these horses for dray purposes in the streets of Birmingham were also questions for the jury. It is urged by the appellee that the word "equipment," as used in the complaint, includes the horses as a part of the equipment of the team, and that evidence tending to show the disposition of these horses would support the insistence that the defendant was negligent in the "equipment of said team and vehicle."
(1) We have, therefore, for consideration the rule for the construction of a complaint, after verdict for the plaintiff, where the pleadings consist of the complaint and a general denial, and where the meaning of the complaint was contested in the primary *511 court by written charges, and not by demurrer. — Code, § 4143, provides that: "No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action."
Where a judgment has been rendered without previous objection on a complaint which contains a substantial cause of action, the complaint, on appeal, will be given a liberal construction. — American Bonding Co. of Baltimore v. New York M. W. Co.,
(2) It is well settled that where the complaint merely states the facts and res gestæ of the injury, not imputing the defendant's negligence to them, and without specifying the negligent acts or omissions relied on, a general averment that the plaintiff was injured as a proximate result of the negligence of the defendant in respect of the duty owed to the plaintiff is sufficient. — Birmingham Ry., L. P. Co. v.Barrett,
(3, 4) The only manner, therefore, in which the meaning of the complaint in the present case could be contested by the defendant company was by written charges, which were requested by it. Having done so, it cannot be said that the defendant suffered judgment to be rendered against it without objection. — Walker v. Marine Dock Mutual Ins. Co.,
(5) When the last sentence of the complaint is read in conjunction with the preceding allegations contained therein, it will be seen that the word "team" as last used may mean "horses." We must, therefore, hold that the words "equipment of the said *512 team and vehicle," as here used, mean the equipment of the horses and vehicle. There is no evidence that the harness or trappings or other equipment of the horses or vehicle were defective or unsuitable for use.
(6, 7) The complaint does not allege a cause of action growing out of the ownership or custody of domestic animals which are vicious and prone or accustomed to do violence, because it fails to allege previous knowledge of the animals' vicious habits (Strouse v. Leipf,
(8) While a single count under our system of pleading may be framed in so general a way as to permit proof of several distinct acts of commission or omission which are in violation of the duty alleged, the acts so shown in evidence must be breaches of that duty. A count must be framed on some definite theory, the *513
breach of some particular duty or the violation of some specific right, and on that theory must succeed or fail. — McGhee, et al. v. Reynolds,
(9) Written charges 5, 6, 8, 9, and 11, which limited the question of negligence to the conduct of, or management of the team by, the driver were proper and should have been given.
(10, 11) Written charge No. 7 is faulty, and was properly refused, in that it pretermits the question as to whether or not the team became unmanageable or got beyond the control of the driver by reason of his negligence. "An instruction which attempts to cover the whole case, and authorizes a finding for one party or the other, according as the jury may determine certain facts, is erroneous, if it omits any material issue." — L. N. R. R. Co. v. Christian-Moerlein Brewing Co.,
(12) Written charge No. 12 is misleading, and was properly refused, in that it may be construed as directing the jury not to consider for any purpose the evidence tending to show the character or disposition of the horses. That evidence was relevant on the issue of the driver's negligence in the control or management of the team. — Park v. O'Brien,
(13) The evidence which was sought to be eliminated by charge B was not objected to. A party cannot be permitted, by delaying to objection to a question before it is answered, to speculate as to what the answer will be or as to the effect of such answer on the issues of the case, and then, dissatisfied after the case has been argued, put the trial judge in error for refusing to charge out such testimony. — Western UnionTelegraph Co. v. Bowman,
(14) The bill of exceptions in this case was not signed within the time required for a review of the main trial, but was signed in time to be used in reviewing the ruling of the court on the motion for a new trial, which was overruled. — Shipp v. Shelton,
Reversed and remanded.
EVANS, J., not sitting.
Addendum
(15) Counsel also insist that the charges referred to were properly refused, in that in the complaint the general averment of negligence contains the words "control" and "operation," in addition to the word "management," and that they do not have the same or a similar meaning. The word "management," as well as the word "operation," when used in a general administrative sense, as in the conduct or operation of a business, might in some instances be said to have a broader meaning than the word "control;" but, as used in this complaint, evidence which would be admissible with reference to either would be admissible with reference to the other. In other words, if this complaint had consisted of several counts, and the negligence in the separate counts had been alleged by the use of one of said words in each of the counts, the same proof that would be admissible under one count to show the breach of the duty alleged in that count would be admissible under each of the counts.
Application overruled.
EVANS, J., not sitting.