Opinion
5 Div. 897.
October 3, 1933.
Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.
Action for damages for personal injuries by R. P. Harris against Bill Gilliland. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Count 1 of the complaint is, in substance, as follows: "The plaintiff claims of the defendant the sum of five thousand ($5,000.00) dollars for that whereas: on or about the 1st day of May, 1931, the plaintiff while riding in an automobile owned by the defendant, at a point near the town of _____, State of Georgia, and at which time and place _____ an agent servant or employee of the said Bill Gilliland who was operating said automobile for and under the direction of the said defendant, who was also riding in said automobile, and that said agent, servant or employee of said defendant went to sleep or otherwise so negligently operated said automobile as to cause the same to overturn and as a proximate consequent of said negligence on the part of said agent, servant or employee, some part of said automobile, or parts, struck the plaintiff, injuring his back," etc.
The gist of count 2 is, that "on or about the 1st day of May, 1931, the plaintiff while riding in an automobile owned by the defendant, at a point near the town of _____, State of Georgia, and at which time and place the said Bill Gilliland was operating said automobile, so negligently operated the same while driving to go to sleep, and as a proximate consequence of said negligence on the part of the defendant in so operating said automobile, the same overturned," injuring plaintiff.
Count A alleges that "on or about the 1st day of May, 1931, the plaintiff, while riding in an automobile owned by the defendant at a point near the town of Tifton, Georgia, and on the public highway leading from Valdosta to Tifton, one Res, an agent, servant or employee of the defendant, and while acting within the line and scope of his authority as such, was operating or driving said automobile for and under the direction of the defendant, who was also riding in said automobile and that said agent, servant or employee of the defendant with gross negligence operated said automobile in this: That while driving said automobile, at the time and place aforesaid, at a rate of speed between twenty-five and forty miles per hour went to sleep or otherwise with gross negligence failed or refused to follow the road or highway and as a proximate consequence thereof ran said automobile off the highway over a fill some four to six feet high, and as a proximate consequence of said negligence on the part of said agent, servant, or employee," plaintiff was injured, etc.
Count B is the same as count A, except that it avers that defendant himself was operating the automobile.
The following were grounds of demurrer to the complaint, to each count separately and severally:
"a. For that the averments of said count show that the wrong complained of occurred in the State of Georgia, and that said count fails to set forth any law or laws of the State of Georgia whereunder the matters complained of constitute a cause of action.
"b. Sufficient averments are not set forth showing a cause of action in favor of the plaintiff under the laws of the State of Georgia.
"c. For that the situs of said occurrence is not sufficiently described.
"f. For that it does not sufficiently appear from the averments of the said count that the said agent, servant, or employee of the defendant, in the doing of the things complained of, was at the time acting as an agent, servant, or employee of this defendant, and within the line and scope of his authority as such agent, servant or employee of this defendant.
"h. For that, construing the said count most strongly against the pleader, from alternative averments therein the plaintiff attempts to set up and describe acts constituting negligence, and the said acts or act, under the conditions named therein, do not necessarily as a matter of law constitute negligence.
"i. For that there is a misjoinder of causes of action in the said suit.
"m. For that no substantial cause of action is stated in the said count.
"n. For that there is a misjoinder of causes of action in the said count.
"o. For that negligence and gross negligence are joined in the same count.
"p. For that plaintiff attempts to set up facts in the said count which are averred therein to constitute gross negligence, and the said facts so averred and set up do not as a matter of law constitute gross negligence.
"q. For that the averments of the said counts are incomplete, confusing, and do not advise the defendant with sufficient clarity of the matters and things therein charged.
"t. For that the averment in effect that the said automobile was operated or driven with gross negligence is but a bald conclusion on the part of the pleader, and sufficient facts are not set up to justify the said conclusion as a matter of law.
"u. For that it does not sufficiently appear whether, in the said count, the plaintiff relies on the negligence of the defendant or the negligence of the said agent.
"v. For that the basis of the cause of action as stated in the count is confusing and contradictory.
"w. For that, from the averments of the said count, it is uncertain as to what was the averred source of the plaintiff's injuries and damages.
"x. For that it is not averred that the said facts set up in the said count constitute gross negligence under the laws of the State of Georgia."
H. A. Teel, of Rockford, and Whit Windham and London, Yancey Brower, all of Birmingham, for appellant.
There can be no recovery in Alabama for injuries to the person sustained in another state unless actionable under the laws of the state where received. Watford v. Ala. Fla. L. Co., 152 Ala. 178, 44 So. 567; Ala. G. S. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 18 L.R.A. 433, 38 Am. St. Rep. 163; Dawson v. Dawson, 224 Ala. 13, 138 So. 414. Under the laws of the state of Georgia, a guest riding in an automobile cannot recover against his host for simple negligence, but must aver and prove gross negligence. Slaton v. Hall, 172 Ga. 675, 158 S.E. 747; Peavy v. Peavy, 36 Ga. App. 202, 136 S.E. 96; Self v. Dunn, 42 Ga. 528, 5 Am. Rep. 544; Epps v. Parrish, 26 Ga. App. 399, 106 S.E. 297. Demurrer to counts 1 and 2 should have been sustained, in that the place where the accident occurred was not sufficiently described. W. Ry. of Ala. v. Turner, 170 Ala. 643, 54 So. 527; L. N. R. Co. v. Whitley, 213 Ala. 525, 105 So. 661; Newell Cont. Co. v. Berry, 223 Ala. 109, 134 So. 870. When a cause of action is declared by disjunctive averments, each averment must state a good cause of action. Taylor v. Lewis, 206 Ala. 338, 89 So. 581; Peck v. Henderson, 218 Ala. 233, 118 So. 262. Gross negligence as averred in counts A and B, under the application made concerning a cause of action arising in the state of Georgia, is more than negligence; it means the want of that care which every man of common sense, howsoever inattentive he may be, takes of his own property. 2 Georgia Code 1914, § 3473; Peavy v. Peavy, supra; Ga. Pac. R. Co. v. Lee, 92 Ala. 262, 9 So. 230; Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185. The demurrer to counts A and B should have been sustained, for that one of the alternative averments in each of said counts, used by way of describing the act constituting gross negligence, that "while driving said automobile, at the time and place aforesaid, at a rate of speed between twenty-five and forty miles per hour went to sleep," etc., without further averment of facts and circumstances, does not as a matter of law constitute gross negligence. Pure Milk Co. v. Salter, 224 Ala. 417, 140 So. 386; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Kaplan v. Kaplan, 213 Iowa, 646, 239 N.W. 682; Peavy v. Peavy, supra. The demurrer to count A should have been sustained, in that in the said count plaintiff in alternate averments relies, first, upon defendant's negligence, or, second, upon the negligence of defendant's servant, agent, or employee. Highland Avenue B. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274.
Pruet Glass, of Ashland, for appellee.
Brief did not reach the Reporter.
The complaint in this case contained four counts.
The defendant interposed demurrers and amended demurrers to each count.
We are not favored with a brief for appellee in this case, and are not advised of the authorities, if any, appellee relies on as concerning the sufficiency of the counts of the complaint. We gather from the record that the case was tried on the theory that there can be no recovery in Alabama for injuries to person sustained in another state, unless the conduct resulting in injury was actionable under the laws of the state where the injury was received. Watford v. Ala. Fla. Lbr. Co., 152 Ala. 178, 44 So. 567; Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 18 L.R.A. 433, 38 Am. St. Rep. 163; Dawson v. Dawson, 224 Ala. 13, 138 So. 414. Assuming this to be the law, and adopting the same theory on appeal that prevailed in the court below, we are of the opinion that the demurrers should have been sustained to each count of the complaint as amended.
It is not negligence as a matter of law, under all conditions and all circumstances, for the driver of an automobile to go to sleep while he is operating a car. Pure Milk Co., Inc., et al. v. Salter, 224 Ala. 417, 140 So. 386; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Kaplan v. Kaplan, 213 Iowa, 646, 239 N.W. 682.
Pleadings are construed most strongly against the pleader. Where negligence is pleaded in the alternative, each alternative must be sufficient.
It is unnecessary to consider the other assignments of error, as the questions there urged may not arise on a subsequent trial.
The judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.