Werten v. K. B. Koosa & Co.

53 So. 98, 169 Ala. 258, 1910 Ala. LEXIS 152

• Court: Supreme Court of Alabama
• Decided: February 3, 1910
• Status: Published

Opinion

ANDERSON, J.

There was a default judgment in this cause; but the appellant insists upon a reversal of this case because the complaint does not state a cause of action and will not, therefore, support the judgment. It may he that counts 1 and 2 fail to state a cause of action. — Charlie’s Transfer Co. v. Malone, 159 Ala. 325, 48 South. 705. But we think that count 3 does state a cause of action and is sufficient to support a judgment. See count 6 in the Transfer Case, supra. We do not understand that the strict rule to be indulged against a pleader on demurrers is applicable when the sufficiency of the complaint is questioned by a general attack upon the judgment, and think that in the latter instance all doubts and intendments should be resolved in favor of, rather than against, the sufficiency of the complaint. The third count avers that the pipes were maintained by the defendant, that his injury was caused by the bursting or leaking of the pipes, and that defendant, knowing of the condition of said pipes, negligently failed to repair same or to cut off the water. It may be that the defective condition of the pipes did not cause them to burst; but the complaint does not ground the proximate cause of his injury to the bursting of the pipes alone, but to the defect in same, in that they leaked, that defendant knew of the defect, and negligently failed to remedy same or to prevent injury to the plaintiff by shutting off the water. We do not mean to hold that this count would be good as against a demurrer, but we do hold that it is sufficient to support the judgment.

We think the witness Craig showed such knowledge of the goods as to testify as to the value of same before and after injury, and the court did not err in refusing that part of his showing pointed out by defendant’s motion to exclude.

There was no error in refusing to exclude the answer of Dougherty.as to the condition of the goods. Whether responsive or not, it was not subject to the grounds assigned, as it was a shorthand rendering of facts for the jury to determine in ascertaining the extent of the damage to the goods.

The judgment by default precluded the defendant from questioning the injury or the manner in which it was inflicted, ás he was bound by it as averred in the complaint, and the trial court did not err in declining to let the witness Malone testify as to the condition of the water-closet and whether or not any of it had burst-ed. — Koosa v. Werten, 158 Ala. 496, 48 South. 546; Dunlap v. Horton, 49 Ala. 412.

The question to the witness as to whether or not it was feasible or practicable for the water to have been caught in tubs or other receptacles, and thereby kept the water from coming in contact with the goods, was but the conclusion or deduction of the witness, and the .trial court will not be put in error for sustaining the objection to same.

“It is the duty of one injured by the act of another to use all reasonable and convenient care to diminish [he amount of his own pecuniary damage.” — Ga. Pa. R. R. v. Fullerton, 79 Ala. 302; 1 Sedgw. on Damages (7th Ed.) p. 56; M. & C. R. R. v. Hembree, 84 Ala. 186, 4 South. 392; L. & N. R. R. v. Hine, 121 Ala. 239. 25 South. 857. Charge 1, requested by the defendant, asserted the lawi and should have been given. It was not abstract, as there was evidence from which the jury could, infer that the damage to the goods could have been avoided or diminished by putting- vessels under the leaks. Indeed, the plaintiffs showed that they tried to cateh the water in vessels, but could not keep it from the goods. On the other hand, Malone testified that they had no vessels to catch the Avater, and also testified to the location and character of the leak, and it was for the jury to determine whether or not plaintiffs attempted to catch the Avater, and Aidiether or not they could have prevented or mitigated the damage by putting receptacles under the leak or leaks.

For the error above suggested, the judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Doavdkll, C. J., and Mayfield and Sayre, JJ., concur.