48 Ala. 566 | Ala. | 1872
This was an action on the case for damages occasioned by a fall from an insecure bridge, built by contract with the commissioners court in 1852, before the Code of Alabama went into effect as the law of the State, There is but one count in the complaint, and this is founded wholly upon our statutes. There was a demurrer to the complaint which assailed both the sufficiency of the statement of facts set forth in the count, and the formality of $ie statement. The demurrer was overruled, and the parties went to trial on the plea of the general issue, with leave to give all proper special matter in evidence to the jury, There was a verdict for ten thousand dollars for the plaintiff below, against the defendant, and judgment accordingly for this sum and costs. From this judgment the county of Barbour appeals to this court, and here assigns several errors on the overruling of the demurrer in answer to the plaintiff’s complaint, and certain other proceedings in the court below in the charges and rulings adverse to the said defendant, as shown in the bill of exceptions taken on the trial below.
The demurrer to the complaint involves the most prominent question in the case as now made before this court. And this requires a construction of the statute upon which the right to recover on the facts stated in the complaint depends. And I proceed at once to the discussion which is thus urged upon the court.
The law, before the promulgation of the Code, which defines the powers of the court of county commissioners, or commissioners of revenue and roads, is found in Olay’s
The other question above referred to involves the consideration of the elements which enter into an estimate of the damages in such a case as this. Damages, it is said, are intended as a pecuniary compensation to the party wronged for the hurt inflicted; to be great or small, in proportion to the injury itself. And where there is no malice connected with the wrong complained of, or such gross negligence, or oppression, or fraud as amounts to malice, the compensation or amount of damages should be con
It is urged by the learned counsel for the appellee, that if the judgment of the court below is reversed, then the cause should not be remanded, but dismissed. I do nof think so. The plaintiff has the right to amend his complaint on sustaining the demurrer. In this, he can put any thing into his amended complaint which shows that he has been wronged by the defendant, and that the wrong so alleged is the subject of an action at law. This court has no authority to presume what this will be. It can only act upon the ease brought here on appeal.
The judgment of the court below is reversed, and the cause is remanded for a new trial.