Illinois Cent. R. Co. v. Elliott , 17 Ala. App. 134 ( 1919 )

There are thirty-three assignments of error made to the action of the court in overruling demurrers to the complaint, in rulings on the admission of testimony, and the giving and refusal of special charges in writing, and to portions of the oral charge of the court.

We do not deem it necessary to pass separately upon each assignment of error; but, as the case will have to be reversed and remanded, we will lay down the rules of law applicable to such cases, which will be a sufficient guide to the lower court upon another trial.

The plaintiff must allege facts in his complaint which show that the damages suffered were the result of a breach of duty owed by the defendant to the plaintiff. B. R. L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Higdon v. Fields, 3 Ala. App. 322,57 So. 58; T. C. I. R. Co. v. Smith, 171 Ala. 251,55 So. 170.

Where the damages suffered are alleged to be on account of a negligent act of a servant or agent of the defendant, the complaint must allege that the act resulting in the damage was done by the servant or agent, while acting in the line and scope of his authority. Going v. Southern Ry. Co., 192 Ala. 665,69 So. 73; Southern Ry. Co. v. Guyton, 122 Ala. 240,25 So. 34; Goodloe v. M. C. R. R. Co., 107 Ala. 233,18 So. 166, 29 L.R.A. 729, 54 Am. St. Rep. 67.

Both of these defects in the complaint were raised by the demurrers interposed to the complaint. We are of the opinion that the averments of the complaint fail to show any breach of duty owed by the defendant to the plaintiff. It is not alleged in the complaint that the negligent act of the servant or agent of the defendant was done by him while acting in the line or scope of his authority. It follows therefore that the court erred in overruling the demurrers to the complaint.

A party must use ordinary or reasonable care and diligence to minimize his damages. Worthington v. Cleveland Lumber Co.,80 So. 688;¹ S. S. S. I. Co. v. Mitchell, 161 Ala. 278,49 So. 851; King Land Improvement Co. v. Bowen, 7 Ala. App. 462,61 So. 22.

The lower court was in error in refusing to allow defendant to show that by use of ordinary care and reasonable diligence the plaintiff could have minimized the damage to her property. Authorities supra.

The measure of damages to the real property is the difference between the value of the property immediately prior to, and immediately after, the injury. S. S. S. I. Co. v. Mitchell, supra; Jackson v. Bohlin, 75 So. 697.² The oral charge of the court, excepted to, "The measure of damages, if you find for the plaintiff in this case, would be the difference between the value of the house and lot just prior, and the value of it just after, the injury, and whatever the injury was to the goods, wares, merchandise, and property contained in the house, and whatever the proof shows it cost to repair the house after the injury" was erroneous. Had the last clause, "and whatever the proof shows it cost to repair the house after the injury," been omitted, the charge would have been free from error. However, the plaintiff would not be entitled to recover both the difference in value of the property and also the cost necessary to repair the same.

Charge 1 requested by defendant was properly refused.

Charges 2 and 3, requested by the appellant, were the affirmative charges and were properly refused.

Charges numbered 5, 6, 7, 8, and 10, requested by the appellant, were properly refused. They were faulty in that they limited the plaintiff, under the conditions set forth in the charges, to a recovery of costs necessary to have prevented the injury, instead of the damages that were caused in spite of the exercise of reasonable and convenient care and diligence to prevent further injury. Arndt v. City of Cullman, 132 Ala. 540,31 So. 478, 90 Am. St. Rep. 922.

There was no error in the refusal of charges 9, 11, 12, 13, and 14, requested by defendant.

For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.

¹ 16 Ala. App. 614.

² 16 Ala. App. 105.