Davis v. Drennen Co. Department Store

66 So. 642, 189 Ala. 683, 1914 Ala. LEXIS 197

• Court: Supreme Court of Alabama
• Decided: November 7, 1914
• Status: Published

Opinion

SOMERVILLE, J.

Where a complaint undertakes to set out, as the negligence relied on, certain conduct of the defendant which is upon its face no more than simple negligence, an additional averment that the defendant thereby, i. e., in that way, wantonly or intentionally injured the plaintiff, is no more than the unsupported conclusion of the pleader; and such a complaint is insufficient upon apt demurrer.—B. R. L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342; Neyman v. A. G. S. R. Co., 172 Ala. 606, 55 South. 509, Ann. Cas. 1913E, 232.

This is, of course, with full recognition of the general rule that the charge of a negligent, or wanton, or willful injury may be sufficiently made in the most general terms. The complaint in this case is, however, clearly distinguishable from the complaints presented in the two cases above cited, and others to the same effect.

In B. R. L. & P. Co. v. Brown, supra, it was expressly predicated that: “There 'is no averment here of a purpose to inflict the injury, and it cannot be said, therefore, that it was intentionally done.”

On the contrary, the complaint in this case specifically charges that the defendant’s servant “wantonly or intentionally caused plaintiff to suffer said injuries and damage by wantonly or intentionally” running his wagon against her buggy.

Conceding that the second and third grounds of demurrer reach the point discussed — which seems doubtful — we think that they are hypercritical and without merit.

The first and fourth grounds are clearly bad, and need no discussion.

The trial court erred in sustaining the demurrer to the second count. The judgment will therefore be reversed, and a judgment here rendered overruling the demurrer.

Reversed, rendered, and remanded.

Anderson, C. J. and McClellan and de Graffenribd, JJ., concur.