56 So. 760 | Ala. Ct. App. | 1911
Lead Opinion
Although, a number of assignments of error are made, all of those insisted upon, except as to the question of excessive damages raised on the motion for a new trial, go to the right of the appellee (the plaintiff below) to. recover of the appellant (the defendant beloAv) exemplary, punitive, or vindictive damages.' The question' is presented, by appellant in different forms: First, by exceptions reserved to certain parts of the oral charge of the court submitting to the jury the right‘to aAvard appellee exemplary or punitive'damages; second, by exceptions reserved to the refusal of the trial court to- give charges requested in writing by the appellant to .the effect that appellee avús not entitled to recover, such- damages; and, third, by exceptions reserved to the court’s refusal to give the general a.ffir'mative charge as to that count of the complaint seeking to recover punitive, exemplary, or vindictive damages.
The plaintiff (below) Avas a customer of the defendant (beloAv) water company, in the sense that the water company, as a public service corporation, was furnishing the plaintiff water for domestic purposes. In February, 1909, the plaintiff’s supply of water at his home in Ensléy was turned off by the agents or employes of the defendant company, notwithstanding he had previously paid for water service for the first quarter of that year, or the months of January, February, and March of the year 1909. These facts are not seriously disputed, and show a wrong inflicted upon the plaintiff through the defendant’s negligence. Was the defendant’s negligence of such a degree as to entitle plaintiff to have the question of awarding punitive, exemplary, or vindictive damages submitted to the jury;
. The plaintiff testified, that about the second or third day after the water supply was turned off he called up
The other testimony in the case sheds no light upon the proposition of plaintiff’s right to have the question of recovering exemplary, punitive, or vindictive damages submitted to the jury. There can be no question but that the defendant was guilty of negligence in cutting off plaintiff’s Avater supply when it had been paid for; yet, if there was no. evidence to warrant the submission of the question of punitive damages to the jury, if there Avas no evidence to justify awarding such damages, it was error to submit that question to the jury.— Peters v. Southern Ry. Co., 135 Ala. 533, 33 South. 332; Birmingham, Ry. L. & P. Co. v. Franscomb, 124 Ala. 621, 27 South. 508, and cases cited. The appellant insists that the trial court erred in allowing the jury to consider giving punitive damages under the evidence adduced upon the trial in this case.
It has long been settled by a line of well-considered decisions in this state that, Avhere the injury is inflicted by Avanton or intentional conduct, punitive damages may be recovered.—Lienkauf v. Morris, 66 Ala. 406; Wilkinson v. Searcy, 76 Ala. 176; L. & N. R. R. Co. v. Whitman, 79 Ala. 328; Ala. Gt. Sou. R. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St. Rep. 17; Ala. Gt. Sou. R. R. Co., v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28; Highland Ave. & Belt R. R. Co. v. Robinson, 125 Ala. 483, 28 South. 28; and the many cases cited in the above decisions. The rule authorizing the recovery of punitive damages is thus stated by Stone, C. J.; in Wilkinson v. Searcy, 76 Ala. 176: “ * * *
Evidently the course of the trouble arose from the. negligent omission of the appellant to have its books properly kept, or its negligence in not having its water rent collections reported, but neither in this nor in the subsequent conduct of the appellant’s employes in dealing with the transaction do we find anything that can be characterized as intentional, willful, or wanton acts of commission or omission, or such as are equivalent to reckless indifference of known harmful consequences, or a conscious willingness to inflict injury. The case presented shows negligence, but no wanton or- wilful
It' is not necessary to consider the question as to whether or not the damages assessed' by the- jury are excessive, as the case must be reversed and remanded for a new trial for the errors committed by the trial court; as above set out, in submitting to the jury the right to award punitive damages.
Reversed and remanded.
Rehearing
On Application for Rehearing.-
PER CURIAM.
In, summarizing .the evidence in the original opinion in this case, the fact Avas not embraced in the summary made of the testimony that the plaintiff testified that he had informed the defendant’s agent or officer in the second conversation had with him over the-telephone that there Avas sickness in his family; but this can in no Avay affect the original conclusion that the evidence does not disclose a case in which a recovery of punitive damages would be authorized, and that the submission of that question to the jury was error.
The plaintiff had paid his water rent for the quarter in question, and it was wrongfully cut off by the defendant until the second or third day thereafter, Avhen he was informed by the officer or agent in charge of the defendant’s business at its office that the books did not show the rent to be paid, and that he would have to pay his Avater rent before the Avater would be turned on. After, waiting for a period of three or four days, the plaintiff again made complaint, and was again informed that the books of the company did not show payment. After waiting for three or four days after this,, the plaintiff entered another complaint at the company’s office, and for the first time told the defendant
When the plaintiff entered his complaint at the office of the company, his conversation is sIioato to have been with an officer of the defendant who Avas not informed any moré that the plaintiff’s statement that he had paid the water rent was correct than that the books of the company shoAving the rent had not been paid Avere correct, and it'is reasonable to suppose that the officer was acting in good faith upon the statements shoAvn upon the books, and Avhy the plaintiff should be so dilatory in making complaints, and show so much reticence about informing the officer of defendant with whom he communicated over the telephone that he held a receipt that Avould have' promptly put an end to further trouble and injury, is not necessary to consider, further than to say that these acts on the part of the plaintiff are not to be attributed to the defendant for the purpose of making it liable in punitive damages.
Application denied.