This is а suit at law by Mrs. J. Morgan Weston against National Manufacturers and Stores Corporation.
The complaint contains one count. The defendant’s demurrer having been sustained, the plaintiff suffered a nonsuit and has appealed, as authorized by the statute. § 819, Title 7, Code 1940.
The reporter will set out the complaint and the demurrer interposed thereto.
Several grounds of the demurrer take the point that the complaint does not allege that the agents, servants or employees of the defendant who agreed to pack and crate the toy vehicle and those who did crate it were acting within the line and scope of their employment. These grounds of the demurrer are not well taken. Such acts are not charged to the agents, servants or employees, but are charged to the defendant, acting by and through its agents, servants or employees. When it is so alleged, it is not necessary to aver the act was omitted or committed by the agents, servants, or employees while acting within the line and scope of their authority. When the defendаnt is charged with doing the act by its agents, servants
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or employees, this shows that the act was done in the line and scope of the agents’, servants’ or employees’ authority. Alabama Power Co. v. Conine,
As to the purchase of’the toy vehicle, the complaint alleged: “ * * * on or about December 10, 1947, the Defendant was engaged in the operation of a furniture store in Mobile, Alabama, wherein was sold, amongst other things, Christmas toys. On or about December 10, 1947, the aforesaid Wesley Bonds went into the Defendant’s store in Mobile, Alabama, and bought from an employee of the Defendant in said store, a to-wit, ‘push cart.’ ” While it is not expressly alleged that the purchase was made from an employee who was at the time acting within the line аnd scope of his employment, the language used is sufficient to justify such reasonable interpretation. In any event, we do not think the complaint was subject to demurrer for failure to so allege. The averments relating to the purchase of the toy vehicle аre merely preliminary and explanatory of the circumstances upon which the plaintiff’s cause of action is based.
In a complaint such as is under consideration here, it is not necessary to allege the names of the agents, servants or employеes of defendant or that their names are unknown to the plaintiff. The grounds of demurrer pointing out the lack of such averments in the complaint are not well taken. Shelby Iron Co. v. Morrow,
Several grounds of the demurrer take the point that sufficient facts are not allеged to show any duty of care owing by the defendant to the plaintiff or wherein defendant violated or breached any such duty. We do not think these grounds of demurrer were well taken.
It is axiomatic that to constitute actionable negligence there must be a duty to the рerson injured, or to a class of persons to which plaintiff belongs, and a breach of the duty, proximately resulting in the injury. Hill v. Reaves,
Appellee, defendant below, argues that the complaint in this case is based on a breach of contract; that defendant hаd no contract with plaintiff or for her benefit; that there was no privity between plaintiff and the defendant, and hence the complaint does not show that defendant owed plaintiff any duty of care.
It is broadly true that where the charge of negligence is based uрon a breach of duty arising out of contractual relations, no cause of action arises in favor of one not in privity to such contract. Lovejoy v. Bessemer Waterworks Co.,
To this rule, 'however, there are well-recognized exceptions, some of which are discussed at length in Jones v. Gulf States Steel Co., supra.
We have held that the general rule referred to above does not apply to a situation where there is an invasion of a legal duty to the plaintiff “independently of or cоncurrently with the contract,” though the plaintiff is not a party to the contract which is necessary to sustain the action. Macrum v. Security Trust & Savings Co.,
We have applied the last-mentioned doctrine to the manufacturers of merchandise for human consumption when, through negligence or willful conduct, it is not suitable for such purpose. The ultimate consumer was not a party to the contract and cannot sue for its breach, but may,
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when intended for consumption by the public, sue in tort for the negligence of the manufacturer resulting in injury to him as the proximate result. Birmingham Chero-Cola Co. v. Clark,
We applied the rule of the “bottled drink” cases just above cited in the case of Macrum v. Security Trust & Savings Co., supra. Macrum was manager of a plumbing and heating company, which was a depositor in defendant bank. He, as such manager and with authority, issued a check of the company on the bank. There were sufficient funds of the company in the bank subject to the check. The bank refused to pay the check on the ground of insufficient funds. Macrum was arrested, placed in jail, and suffеred other special damages set out. Macrum brought suit against the bank, not for breach of contract, but in tort arising out of contract.” The trial court sustained the demurrer of the bank and Macrum took a nonsuit on account of such ruling and appealed to this court. Counsel for the bank, appellee here, seeking to sustain the ruling of the trial court, contended that the complaint showed no breach of duty to Macrum in the respect charged, but only a breach of duty to the company of which he was manager.
Wе reversed the judgment of the trial court, saying in part as follows:
“It would seem that the underlying principle (the basis of all actionable torts) is that one owes another the duty fixed by law not negligently or willfully or wrongfully to do an act which will probably injuriously affect him, unless there be legаl justification. In respect to beverages, it is said, ‘The foundation of the liability here, as elsewhere, is the superior knowledge of the manufacturer or seller as to the peril ^embodied in the article sold.’ 24 R.C.L. 514.
“As applicable to the instant case, the jury may find that the banker shоuld have had knowledge of the peril of plaintiff individually to sustain some nature of damage as the proximate result of the wrongful refusal to cash the check issued by the plaintiff, the manager, and in the name of his principal. Stated otherwise, could it be said to be reasonably foreseeable, or that there was reasonable danger that this plaintiff individually would sustain damage, as the proximate result of the alleged negligent, willful, or wanton wrong of the bank, though such wrong consisted of a breach of contract with the plaintiff’s principal, for which such principal would have a tort action ?
“Our conclusion is that the answer to the above inquiry is that it should be left to the jury on proper proof and not be determined as a matter of law whether such alleged wrong did or did not proximately injure him and constitute the basis of a tort action, whеn the complaint alleges that it did. The nature of the recoverable damages is not here presented, and not now considered.”
Independent of the contract, the defendant owed the plaintiff the duty imposed by law to be careful not to hurt her. Southeastern Greyhound Lines v. Callahan,
We think that under the rule of Macrum v. Security Trust & Savings Co., supra, the allegations of the complaint show a duty of care owing by the defendant to the plaintiff and a breach of that duty. See the following cases from other jurisdictions : Miller v. International Harvester Co.,
We come now tо consider those grounds of the demurrer which, in effect, take the point that the averments of the complaint are insufficient to charge negligence on the part of the defendant.
Negligence has been defined as “the omission to do something which a reаsonable man, guided by considerations which ordinarily regulate conduct of human affairs and concerned only with reasonable probabilities, would do, or the doing of something which he would not do.” City of Birmingham v. Latham,
Negligence may be averred in a very general way, аnd the quo
modo
of the negligence need not be defined. Western Ry. of Alabama v. Mays,
If the alleged acts or omissions do not of themselves constitute negligence as a matter of law, but are sufficient to suggest and support an inference of negligence, the cоmplaint must allege negligence, the plaintiff assuming the burden to prove negligence in the particular case. City of Birmingham v. Comer,
When a complaint for personal injuries specifies particular acts or omissions of a defendant as constituting the negligence upon which the action is founded, the complaint is insufficient on apt demurrer,
unless such acts in themselves show or suggest negligence,
and a general averment of negligence does not cure the defective specification. City Ice Delivery Co. v. Goode,
But where the complaint merely states the fact and res gestae 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 to the duty owed to the plaintiff is sufficient. Birmingham R., L. & P. Co. v. Barrett, supra; Birmingham Ry., Light & Power Co. v. Jordan,
In the light of the foregoing rules we must determine whether the averments of the complaint are sufficient to charge the defendant with negligence. The pertinent averments of the complaint are as follows:
“The Plaintiff further alleges that when she opened the carton containing the said vehicle in the presence of her husband and friends; it was found that the said vehicle had been improperly packed by the Defendant, acting by and through its servants, agents or employees, in that the carton containing said vehicle was packed with cigarette butts, used envelopes and stationery on which there was tobacco spit, discarded kleenex on which there was nasal secretion and used kotex, on which there was evidence of human blood.
“The Plaintiff alleges that she was nauseated by the sight of the aforesaid filthy condition; she was humiliated in the presence of her husband and friends; that she became violently ill and has suffered mental pain and anguish; Plaintiff alleges that all of her injuries and sufferings was caused by the negligence of the Defendant, acting by and through its agents, servants or employees, in crating the aforesaid vehicle in a manner inconsistent with human dignity.”
We are of the opinion that the averments of the first paragraph quoted above are sufficient to suggest and suрport an in *511 ference of negligence. The complaint alleges negligence in the concluding paragraph. The complaint in question meets the requirements of our cases above referred to. We hold, therefore, that the grounds of the demurrer taking the point that the averments of the complaint are insufficient to charge the defendant with negligence are not well taken.
We have discussed above all the grounds of the demurrer except one, which takes the point that the complaint fails to allege that the injury and sufferings of the plaintiff were the proximate result of the alleged negligence of the defendant. The complaint does not use the word “proximate” but does aver that “the injuries and sufferings was (sic) caused by the negligence of the defendant, etc.” (Emphаsis supplied.)
This was sufficient. In Curry v. Southern Ry. Co.,
We are of the opinion that the trial court erred in sustaining the demurrer, as we do not think any of the grounds were well taken. It follows that the judgment of nonsuit is reversed and the cause is remanded.
Reversed and remanded.