The opinion
MADDOX, Justice
(dissenting).
The majority holds that the amended complaint 1 fails to state a cause of action and that the demurrer should have been sustained. I must respectfully disagree. I believe the pleading here is as specific as the complaint this Court held was sufficient in Alabama Power Co. v. Talmadge, 207 Ala. 86 , 93 So. 548 (1921), appeal dismissed 259 U.S. 575 , 42 S.Ct. 463 , 66 L.Ed. 1071 , a case involving a charge that the Alabama Power Company had negligently allowed gas to be transmitted into a home. The amended complaint here shows that the plaintiff’s stepfather purchased 95 gallons of propane gas ' from the defendant, that the defendant delivered the gas to a tank located near the house, that there was a cut-off valve on the tank and that the defendant negligently failed to cut the gas off and failed to give notice that the gas had been delivered and that the tank cutoff valve was not closed.
Even though Alabama does not now have a simplified procedure for pleading, I believe that our statutes [Tit. 7, § 212, Code, 1940, Recompiled 1958] and case law are to the effect that the amended complaint here was sufficient. In this Court’s early case of Leach v. Bush, 57 Ala. 145 (1876), it was said:
“Pleadings are statements of the facts involved in the issue, and need not contain the evidence which supports them. They ‘must be as brief as is consistent with perspicuity, and the presentation of the facts or matter to be put in issue in an intelligible form; no objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party thereon.’ — Revised Code, § 2629. They must not be ‘unnecessarily prolix, irrelevant, or frivolous,’ and if so, ‘may be stricken out at the cost of the party so pleading.’ — Revised Code, § 2630. The forms given in the Revised Code, p. 673, are samples of brevity, furnished by the legislature itself. When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient if the complaint aver facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, &c.; not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty. What the defendant did, and how he did it, and what he failed to do, are generally better *299 known to the defendant than to the plaintiff; and hence it is that in such cases, a general form of averment is sufficient. — 1 Chit.Pl. 336.”
Furthermore, since I think the amended complaint avers sufficient facts to show a duty on the part of the defendant to exercise ordinary care and prudence in the conduct of its business so as not to endanger life and property, I think that any error in failing to sustain the demurrer of the defendant would be error without injury.
This Court has held in Western Ry. of Ala. v. Brown, 280 Ala. 543 , 196 So.2d 392 (1967):
“We do not hold that the compláint is not defective on some or all of the grounds urged by defendant. Even if the court erred in overruling the demurrer, however, we must review the ruling in light of the rule that overruling a demurrer to a count is not always reversible error. The rule is that if there is some defect of averment in the complaint and the court has erred in holding such pleading good, nevertheless, if there is evidence of the matter so omitted and both parties try the issue as though such allegation were made, and the court instructs the jury that such matters must be proven, and both parties have full opportunity to offer and do offer all the evidence they wish on that issue, we will not reverse the judgment for the error in such rule on the pleading. Turner v. Blanton, 277 Ala. 536, 540 , 173 So.2d 80 , and authorities there cited. The error in overruling the demurrer must be held as cured by the clear instructions requiring proof of the omitted allegation. Southern Ry. Co. v. Dickson, 211 Ala. 481, 485 , 100 So. 665 . There are circumstances, however, when the rule will not apply, as, for example, when the complaint does not state a cause of action without the matter which was omitted. Thompson-Hayward Chemical Co. v. Childress, 277 Ala. 285, 291 , 169 So.2d 305 ; City of Mobile v. McClure, 221 Ala. 51, 53 , 127 So. 832 .”
The majority opinion shows that an inspector for the Alabama L. P. Gas Board testified at the trial that, in his opinion, it would be unsafe for a liquefied petroleum deliveryman not to cut off the gas at the tank when making a delivery with the knowledge that the tank was empty and that no one was at home.
I do not think that the plaintiff is required to set out all the evidence in the pleadings. Having alleged that the defendant undertook to supply, pursuant to a contract of sale, a product which this Court judicially knows to be explosive, I think those facts standing alone raised a duty on the part of the defendant to exercise ordinary care and prudence in the conduct of its business so as not to endanger life and property. I believe that a general allegation that the defendant negligently failed to do or perform would be sufficient, because “what the defendant did, and how he did it, and what he failed to do, are generally better known to the defendant than to the plaintiff.” Leach v. Bush, supra.
The majority puts much emphasis on the case of Triplett v. Alabama Power Co., 213 Ala. 190 , 104 So. 248 (1925). There, the jury returned a verdict for the defendant, after the Court had given the affirmative charge to the defendant. It is interesting to get the original record in the case, however, and read plaintiffs pleadings, to which defendant’s demurrer was overruled. The pleadings in Triplett are no more specific than the pleadings here, in my judgment, and yet the trial court in Triplett , overruled a demurrer of the defendant which is strikingly similar to the demurrer which the majority holds to be sufficient in the case here.
I have no quarrel with the Triplett case, however. Under the facts of that case, where the evidence showed that the defendant had no knotvledge of the defect in the heater inside the house, I believe that this Court correctly decided the case on the principle of law there announced that the furnisher of gas is warranted in assuming that the interior system of pipes is suffi *300 ciently secure to permit the gas to be introduced with safety. But I fail to see how a case concerning- a defective interior system has application to this case. The plaintiff does not seek to impose liability on the defendant for failing to check inside the house to see if all the valves are off, but says that since the defendant knew the tank was empty and that no one was at home, that the defendant should have turned off the gas at the tank. An expert witness, who conducts inspections for the Alabama L. P. Gas Board which regulates the activities of L. P. gas dealers said that the defendant’s failure to turn off the gas at the tank, under the circumstances, was “unsafe.” In view of all these circumstances, as shown by the record, I would affirm the judgment of the lower court
HEFLIN, C. J., concurs.
. “Plaintiff, Connie Marcus, a minor suing by her mother and next friend, Barbara Ann decider, claims * * * damages for that heretofore on, to wit: January 15, 1969, the Defendant went to the home where Plaintiff lived located approximately three-fourths a mile west of Jemison, and in Chilton County, Alabama, and Defendant at said time and said place delivered to wit: 95 gallons of propane gas, which was purchased by her step-father, Pate Herbert Cleekler-, and/or her mother, Barbara Ann Cleekler, and agreed by Defendant to be delivered to a 120-gallon propane gas tank situated 5 feet from Plaintiff’s house and connected to said house by a pipe leading from said tank to said residence. Plaintiff avers that at the time and place of the delivery of propane gas as hereinabove set out that the Defendant negligently failed to stop the flow of the propane gas so delivered into the home of Plaintiff anti negligently failed in any manner to give notice that such propane gas had been delivered and was present in the said 120 gallon propane gas tank without the flow of gas into the home of the Plaintiff being stopped by the turning of the cut-off valve which was present on the said 120-gallon propane gas tank at said time and said place. And Plaintiff avers that she entered the home hereinabove described with her brother, Dale Marcus, and her mother, Barbara Ann Cleekler, at to wit: 7 p. m., January 15, 1969; that at said time and said place Plaintiff’s mother, Barbara Ann Cleekler, struck a match which ignited the propane gas the Defendant has negligently allowed to enter her home at the time and place and in the manner hereinabove set out and thereby injuring Plaintiff * *