J. T. Camp Transfer Co. v. Davenport

PELHAM, P. J. 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., 11 Ala. App. 578, 66 South. 847. The usual manner of objecting to a complaint for insufficient allegations or indefiniteness is by demurrer; but the complaint in the present case was not demurrable. (2) It is well settled that where the complaint merely states the facts and res gestas 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, 179 Ala. 274, 60 South. 263; Birmingham By., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543; Ensley Ry. Co. v. Chewning, 93 Ala. 24, 9 South. 458. (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., 31 Ala. 529. The statute not being applicable and the complaint not demurrable, we must, in determining whether the trial court erred in refusing the requested charges, construe the complaint according to the general rule, most strongly against the pleader; and if the complaint admits of two constructions, that least favorable to the pleader will be adopted. — Lacy v. Holbrooks, 4 Ala. 88; Lovell v. DeBardelaben, 90 Ala. 13, 7 South. 756; Baker v. B. & A. Ry. Co., 163 Ala. 101, 49 South. 751. The context with which a word is used largely governs its meaning. (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 a,nd 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, 101 Ala. 433, 14 South. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122) ; and while our system of pleading is very liberal in the matter of general averments of negligence, our cases do. not depart from the elementary rule that the pleader must allege facts showing a duty owing by the defendant to the plaintiff and a breach of that duty which proximately caused the plaintiff’s injury (Ensley Railivay Co. v. Chewning, 93 Ala. 24, 9 South. 458; Leach, Harrison & Forwood v. Bush, 57 Ala. 145 Birmingham Railway, L. & P. Co. v. Barrett, 179 Ala. 274, 60 South. 262). The allegations of the present complaint not only fail to charge the defendant with the ownership of the horses, but also fails to describe them as dangerous, wild, vicious, or likely to run away, or as such horses that a reasonably prudent man, in the exercise of due care, would not have used in the public streets of the city of Birmingham. Wanting in such facts, we must construe the complaint, most strongly against the pleader, as describing horses about which there was nothing unusual or peculiar, and we find that it fails to show any duty owing by the defendant not to use or permit these horses to be used in the public streets, or to warn the driver as to their past history, temperament, or disposition. If the complaint had shown that the horses were unusual or likely to run away, the plaintiff’s rights and the defendant’s duty would have been made to appear in a more favorable light to the plaintiff. The only duty that the facts alleged show is a duty on the part of the defendant “in charge or control” of them in the public streets, on or about a certain day, to so control or manage them at that time as not to negligently permit them to injure the plaintiff or her property. (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, 129 Ala. 540, 29 South. 961. A complaint cannot be made elastic so as to take form with the varying views of counsel or the developments of the evidence. (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., 150 Ala. 390, 43 South. 723. (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, 23 Conn. 339. And for the same reasons charge A was properly refused. (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 Union Telegraph Co. v. Bowman, 141 Ala. 175, 37 South. 493; Dowling v. State, 151 Ala. 131, 44 South. 403; B. R. L. & P. Co. v. Taylor, 152 Ala. 105, 44 South. 580. (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, 193 Ala. 658, 69 South. 102; Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 South. 501; Cobb v. Owen, 150 Ala. 410, 43 South. 826. The charges above referred to were incorporated *514 in the motion for a new trial as grounds therefor. The judgment must be reversed, and the cause remanded. Reversed and remanded. Evans, J., not sitting.