64 So. 193 | Ala. Ct. App. | 1913
The reporter will set out count 1 of the complaint, the overruling by the court of a demurrer to which is here assigned as error by the defendant.
We are of opinion that the demurrer should have been sustained. The count, it will be observed, is predicated, not upon negligence, but upon wantonness or willfulness in inflicting the injury. It avers in the alternative that defendant’s servant in charge of the car, acting within the line and scope of his authority as such, “wantonly or intentionally caused plaintiff to suffer said injuries and damage by -wantonly or intentionally carrying plaintiff a long distance past his desiination.”
In the case of Memphis & Charleston R. R. Co. v. Martin, 117 Ala. 382, 23 South. 237, our Supreme Court, speaking through Coleman, J., say: “The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, without further averment, falls very far short of showing that the injury was intentionally or wantonly inflicted. Unless there was a purpose to inflict the injury, it cannot be said to
Here, as will be observed from the quotation before made from the count under consideration, it is averred that the defendant’s servant wantonly or intentionally
The demurrers, we think, sufficiently pointed out some of the defects of the count, and should have been sustained. The judgment is therefore reversed.
Reversed and remanded.