63 So. 65 | Ala. Ct. App. | 1912
— We are not of opinion that the second count of the complaint as amended was subject to the ground of demurrer to it now relied on by the counsel for the appellant, which suggested its failure to allege or show how or in what manner the defendant (the appellant here) was guilty of wantonness. As we construe that count of the complaint with the addition to its averments made by the amendment, the wanton conduct complained of is that of the defendant’s employees acting within the line or scope of their employment. Their conduct, as it is described in the count as amended, is shown to have been wanton, as it is plainly averred that they, knowing that the blasting opera
The action of the court in permitting the plaintiff to prove the ages of his children is assigned as error. One
The claim that the defendant was entitled to the general affirmative charge, requested in its behalf as to the first count of the complaint as it was amended, is based upon a construction of the averments of that count under which its claim to damages is confined or limited to special damages for frightening the plaintiff and members of his family and endangering their lives; the contention being that there was an absence of evidence tending to prove that the plaintiff sustained the special damages alleged. We dO' not construe that count as so limiting the plaintiff’s claim to damages. It plainly claims the amount of damages sought to be recovered for the commission of the wrong alleged, and concludes with an allegation to the effect that the plaintiff was specially damaged in the respect above mentioned.
Such damages as the law implies or presumes to have accrued from the wrong complained of were recoverable under the general claim of damages made in the first paragraph of that count, which were not required to be specifically set forth; such specification being required only as to damages known as special damages, or such as are of an unusual or extraordinary nature, and not the ordinary consequence of the wrong complained of.-
Error is imputed to the action of the court in refusing to give the general affirmative charge requested in behalf of the defendant as to the second count of the complaint as it was amended, principally upon the ground that there was an absence of evidence of actual participation by the defendant corporation in the wrong complained of. This contention involves the claim that the charge of wanton ness made in that count is against the defendant corporation itself. This claim also is has-
The charge requested by the defendant to the effect ■ that the plaintiff could not be allowed more than nominal damages was properly refused. Under the allegations and the supporting evidence in the case the blasting operations, as carried on throughout a considerable period of time, Avithout due precautions being taken for
The commission of such a wrong subjects the wrongdoer to liability for something more than nominal damages, and in assessing damages in such a case account may be taken of and compensation allowed for the fright, sense of personal danger, or other mental suffering shown by the evidence to be the proximate and natural consequence of the repeated trespasses committed under such circumstances. — Mattingly v. Houston, 167 Ala. 167, 52 South. 78; Engle v. Simmons, 148 Ala. 92, 41 South. 1023, 7 L. R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740; Snedecor v. Pope, 143 Ala. 275, 39 South. 318; 38 Cyc. 1137.
The assignment of error based upon the action of the court in overruling the defendant’s motion for a new trial is sought to be supported by considerations which already have been disposed of adversely to the appellant by what has been said in reference to other assignments of error. We do not find that the appellant has any just ground of complaint against any ruling of the trial court.
Affirmed.