Duncan v. Robertson

Decided October 28, 1930

Decided 1930-10-28

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Posture: Appeal from Circuit Court, Etowah County; O. A. Steele, Judge. Action for personal injuries and property damage by O. W. Robertson against C. O. Duncan. From a judgment for plaintiff, defendant appeals. Affirmed. Certiorari granted by Supreme Court in Duncan v. Robertson (7 Div. 994) 222 Ala. 131 , 132 So. 58 . The complaint alleges that plaintiff, while driving his automobile along a city street, on coming to a small bridge on said street, met the motor truck of defendant which was being driven by defendant's agent or servant, and meeting plaintiff, and plaintiff charges that defendant's said agent or servant, whilst acting within the scope of the duties of his employment as such, negligently ran said truck into plaintiff's automobile, and as a proximate consequence of the negligence aforesaid plaintiff was injured and damaged, etc. The complaint concludes: Plaintiff charges and avers that it was night time and defendant's truck had no lights burning thereon in violation of the laws of the State of Alabama, hence this suit. The demurrer takes the points (a) that the count is too vague, indefinite, and uncertain to inform defendant of what he is called upon to defend; (b) that it fails to aver who the agent was; (c) that it is not averred that the failure of the truck to have lights burning was the proximate cause of the injury.