Opinion
6 Div. 650.
April 27, 1922.
Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.
L. D. Gray, of Jasper, for appellant.
Counts 1 and 3 of the complaint were subject to the demurrers interposed. 93 Ala. 26, 9 So. 458; 1 Ala. App. 595, 55 So. 1023; 124 Ala. 349, 27 So. 455; 164 Ala. 73, 51 So. 365, 137 Am. St. Rep. 25; 174 Ala. 657, 56 So. 1013; 171 Ala. 251, 55 So. 170; 133 Ala. 373, 32 So. 135; 129 Ala. 399, 29 So. 798; 103 Ala. 136, 15 So. 508; 122 Ala. 487, 26 So. 168; 113 Ala. 640, 21 So. 357. The court should have granted the motion to strike the allegation of damages. 89 Ala. 577, 8 So. 39; 94 Ala. 626, 10 So. 333; 93 Ala. 227, 9 So. 389; 105 Ala. 493, 17 So. 32, 53 Am. St. Rep. 139.
Lacy, Lacy Shepherd, of Jasper, for appellee.
Counts 1 and 3 were in all respects sufficient. 204 Ala. 658, 86 So. 541. The court did not err in refusing to strike. 152 Ala. 277, 44 So. 592.
B. G. Jones sues George Plylar to recover damages suffered by him personally and for injuries to his automobile from a collision between their automobiles. There was judgment for plaintiff, and defendant appeals. There is no bill of exceptions. The appeal is on the record.
Demurrers were overruled to counts 1 and 3 as amended of the complaint, and these rulings are assigned as errors. These counts charge simple negligence.
Each count avers that defendant negligently ran his automobile into plaintiff's automobile, causing the injury, while plaintiff was operating his automobile in "a road or highway which was used and traveled over by the public and over which plaintiff and the public had the right to travel, in or near the town of Parrish." These counts aver that plaintiff had a right to travel where he was injured; that it was in a road or highway traveled over by the public, and where the plaintiff and the public had the right to travel. This is sufficient to show that plaintiff was not a trespasser at the time on the property of the defendant, and that a duty was owed him by the defendant to use due care not to injure him there. Ala. Fuel Iron Co. v. Bush, 204 Ala. 658, 86 So. 541. These counts aver the injury occurred in a road or highway used and traveled by the public, and over which the plaintiff and public had a right to travel. Under this averment defendant owed plaintiff the duty not to negligently injure him or his property there. These counts aver a negligent breach of that duty by the defendant, and one count avers plaintiff's automobile, and the other count that his person, was injured as a proximate result thereof. These counts are sufficient under demurrers, and the court did not err in overruling them. Ala. Fuel Iron Co. v. Bush, 204 Ala. 658, 86 So. 541.
The court did not err in refusing the motion of the defendant to strike the following words from counts 1 and 2 of the complaint:
"That prior to and at the time said plaintiff's automobile had been and was used by plaintiff in the business of carrying passengers for hire," and "has been and will continue to be deprived of the use of his said automobile in his said business for a long period of time and thereby caused to lose much money."
It avers the automobile injured was being used by plaintiff in the business of carrying passengers for hire. In a case like this the measure of damages would be what would remunerate the plaintiff for the reasonable market value or reasonable cost of the material and labor made necessary by the injury to repair the automobile, and what would remunerate the plaintiff for the reasonable market value of the use or hire of the automobile during the time it was idle, reasonably necessary to make the repairs and fix it for running as it was before the injury. So. Ry. Co. v. Reeder, 152 Ala. 227, headnotes 7 and 8, 44 So. 699, 126 Am. St. Rep. 23; Walker v. Gunnels, 188 Ala. 209, 66 So. 45.
Plaintiff by averments in the counts seeks to recover these elements of damages, and the motion to strike a part of them from the counts was properly refused. Moreover, this motion is not revisable, because the defendant can protect himself from improper damages by objecting to the evidence and by special written charges. Vandiver Co. v. Waller, Adm'r., 143 Ala. 411, 39 So. 136.
Finding no error in the record, the case is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.