Aрpeal from a judgment against appellants for $7,000 arising out of a truck-automobile collision in which appellee was injured. Appellants’ motion for a new trial was overruled.
We have not been favоred by a brief in behalf of appellee, and since ‘submission, we havе been informed by 'counsel for ap-pellee that appеllee “elected not to file briefs.”
*6 ,,The cause was submitted to the jury on two. counts claiming $25,000 damages, one charging simple negligence and one charging wantonness, and appellants’ pleas in short by consent. It was appellee’s contention that appellant Rоbbins was driving appellant Alabama Power Company’s truck and failed to stop at a stop sign and ran into the left side of her automobile.
It is сlear from the record that the verdict and judgment would not have been as large as it was unless the jury had awarded punitive damages. And under two requested written charges, given by the court at the request of the appellee, the court charged the jury that it should assess punitive damages аgainst appellants if appellants were guilty of wantonness.
, The charges read:
'• “T charge you, Gentlemen of the Jury, that if you find the evidence that the Defendants, Alabama Power Company, a Corporation and Fred B. Robbins, were guilty of wanton negligence, then you •..should assess puntative (sic) damages . аgainst them in whatever amount you ■ feel will sufficiently punish the said . Alabama Power Company, a Corporation and Fred B. Robbins for their actions, l4 but in nо case more than the sum of $25,000.00.” (Emphasis supplied.)
. ■ “I charge you, Gentlemen of the Jury, . that if you find from the evidence that the Defendant, Fred B. Robbins, consciously crossed the center line and trav-elled into the west lane of U. S. 11, and that this lane was already occupied by Plaintiff’s vehiclе, being conscious that another was in peril or with reckless disregard fоr the results of his act, then he is guilty of willfull or wanton negligence and you should assess such vindictive damages as may in the enlightened conscious (sic) of the Jury be right.” (Emphasis supplied.)
Appellants make the giving of each of these charges subjects of separate assignments of error.
Punitive damages are not recoverable as a matter of right except as provided by statute, Treadwell Ford, Inc. v. Leek,
The trial court erred in directing the jury that it “should” assess punitive damages, and the failure to leave such assessment to the discretion оf the jury has been held to be reversible error. Lehigh Portland Cement Co. v. Sharit,
We dо not intimate that the two quoted charges would be good even if the imрosition of punitive damages had been left to the discretion of thе jury. Appellants raise the point that neither charge contains thе element of proximate cause; but having already decided thаt the giving of the charges constituted reversible error, we do not decide the question of the omission of proximate cause from the charges.
We have not discussed all of the assignments of error argued by appellants because it is possible they might not arise in a second trial.
For the errors discussed, the judgment of the lower court is reversed and the cause is remanded.
Reversed and remanded.