Summary
In City of Anniston v. Greene, 26 Ala. App. 513, 162 So. 570, the city was held liable where a cement sidewalk extended for a half block past an intersection where it terminated on the bank of a creek with an abrupt step into the creek, without any light, bannister or other warnings.
Summary of this case from Cooper v. City of FairhopeOpinion
7 Div. 135.
June 28, 1935.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Action for damages by P. W. Greene against the City of Anniston. From a judgment for plaintiff, defendant appeals.
Affirmed.
The complaint is, in substance, as follows:
"The plaintiff claims of the defendant the sum of Five Thousand Dollars as damages and avers that on to-wit: December 15, 1932, a cement sidewalk extended from about the southwest corner of Quintard Avenue and 'E' Street, in said city, for about half a block west toward Wilmer Avenue, where it terminated on the bank of a creek or large branch, and where there was an abrupt step into the said branch or creek from said sidewalk. On said date he fell into or stepped into said branch or creek from said sidewalk, and was carried a distance of to-wit: two hundred feet by the water in the same. * *
"Plaintiff further avers that his said injury or wrong was done or suffered through the negligence, carelessness or failure to remedy said defect in said street or sidewalk, after the same had been called to the attention of the council or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council. Said defect had existed for a period of more than six months. Plaintiff further avers that said sidewalk was negligently allowed to be in close proximity to said creek or ditch and there was no light near thereto, and no bannister or other warning for plaintiff or other people walking along said sidewalk. * * *"
Jas. F. Matthews, of Anniston, for appellant.
If the complaint fails to state a cause of action, it will not support a judgment, either by default or otherwise. If a judgment is entered on such a complaint, it will be set aside and vacated on motion. Louisville N. R. Co. v. Williams, 113 Ala. 402, 21 So. 938; Ritter v. Hoy, 1 Ala. App. 643, 55 So. 1034; Central of Georgia R. Co. v. Carlock, 196 Ala. 659, 72 So. 261; Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46; Osborne v. Cooper, 113 Ala. 405, 21 So. 320, 59 Am.St.Rep. 117; Louisville N. R. Co. v. Duncan, 137 Ala. 446, 34 So. 988.
Roy M. Woolf and Knox, Acker, Sterne Liles, all of Anniston, for appellee.
Any defect in a complaint stating a substantial cause of action is cured where the defendant fails to object in the trial court by demurrer or otherwise and files plea to the merits, amendable defects in the complaint are thereby waived. All intendments will be indulged to support the judgment. Ahrens-Rich Auto Co. v. Beck Corbitt Iron Co., 212 Ala. 530, 103 So. 556; Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685; Code 1923, § 7858; Central of Georgia R. Co. v. Williams, 17 Ala. App. 259, 84 So. 633; McGowin v. Dickson, 182 Ala. 161, 62 So. 685; Parker v. Jefferson County, 209 Ala. 138, 95 So. 364; Lessley v. Prater, 200 Ala. 43, 75 So. 355; Cairns v. Moore, 194 Ala. 102, 69 So. 579. If the complaint states a substantial cause of action, though demurrable, and issue is taken on it, evidence is admissible in support thereof, and, if proven, plaintiff is entitled to a verdict. Central of Georgia R. Co. v. Gross, 192 Ala. 354, 68 So. 291; Kramer v. Compton, 166 Ala. 216, 52 So. 351; Abstract T. G. Co. v. Kigin, 21 Ala. App. 397, 108 So. 626; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693; Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665; Best Park Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas. 1917D, 929. The complaint is sufficient to show the public character of the sidewalk on which plaintiff's injury occurred. Birmingham v. Shirley, 209 Ala. 305, 96 So. 214.
Appellee brought his suit against the city of Anniston claiming damages on account of personal injuries received by falling into an unlighted ditch or ravine, as a result of a defect in one of the sidewalks of said city.
The single count of his complaint was unchallenged by demurrer; appellant choosing, instead, to file its pleas and proceed to trial.
After verdict and judgment in appellee's favor, appellant filed its motion to set same aside and grant it a new trial. The motion was overruled.
Upon this appeal, the sole alleged error, and the sole ground upon which same is claimed, that is, even cursorily argued to us, is that the trial court erred in failing to set aside said verdict and judgment because the complaint stated no "substantial cause of action."
The statute, of course, provides that: "No judgment can be * * * set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action." Code 1923, § 7858.
The rule for construing a complaint, to see whether or not it contains a substantial cause of action, when it is attacked, as here, is thus stated by Mr. Chief Justice Anderson, then associate justice, in the opinion for our Supreme Court written by him in the case of Werten v. K. B. Koosa Co., 169 Ala. 258, 53 So. 98, 100, to wit: "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." (Italics ours.)
Considering the complaint before us in the light of the quoted rule, and in the light of Code 1923, § 2029, we entertain no doubt that it was sufficient, as against the attack made, to support the judgment. If there were defects in it, and there were, they were only such as might have been readily amended had appropriate demurrer been interposed. See Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685; Cairns v. Moore, 194 Ala. 102, 69 So. 579; Parker v. Jefferson County, 209 Ala. 138, 95 So. 364; and Morrison et al. v. Clark, 14 Ala. App. 323, 70 So. 200.
The judgment is affirmed.
Affirmed.