Blackburn v. Alabama Great Southern Railroad, 143 Ala. 346

TYSON, J.

The complaint contains two counts and both are in case — ex delicto. While the evidence undisputedly establishes the breach of duty alleged in the first-count', it does not- tend in any degree, as we will show, to prove thе averments of tliat count upon which the substantial damages sought to be recovered are predicated.

It is there alleged that, plaintiff in consequence of the breach of duty “Suffered great physical and mental pá-in and anxiety, was put to great trouble, incоnvenience and expense in and about going back to his destination, and having a large amount of money on his person and being compelled to go through a lonely country back to his destination, he was put in great fear and was made sore and sick and lost much time in gеtting to his said destination.” The testimony undisputably shows that plaintiff did not, after leaving the train at Green Pond station, go back to the station, Standiford, thе point of his destination, as alleged, but walked from Green Pond directly to his home. It also shows that he would have had to. walk from Standiford to his home had the train stopped ‍​‌​‌​‌‌​‌​‌‌​​‌‌​‌​‌​​​​​‌​​‌​‌​​‌‌​‌‌​‌​​​​​‌​​‍there. It is true, it does show he was compelled to walk about one mile further, than he would have had to hаve done had he been put off at Standiford, and this is the only inconvenience shown that he suffered. But this inconvenience is not the one complained of in the count. There was no evidence that he suffered mental and physical pain, or that he had a large amоunt of money, or that he was compelled to go through a lonely country, etc., etc., as alleged. But it is insisted that plaintiff, having shown, without disputе, by the evidence, the breach of duty as alleged, wa.s entitled to recover nominal damages. It is true that “Every wrong imports a damage and where none other is proven and the evidence shows a clear breach of duty, nominal damages are always recoverable.” — Adams v. Robinson, 65 Ala. 586; 8 Am. & Eng. Ency. Law, (2nd ed.), p. 551, and cases cited in note 4.' But it does not follow from this that this Court will reverse the judgment appealed from, for the purpose of аllowing plaintiff to recover nominal damages, in the absence of a right of importance to- be vindicated by the assessment of thеm, and in view of the fact that he could recover under the statute (§ 1326 of Code) no- more costs than damages. Such damages are awarded, not as compensation for the injury, but merely in recognition of plaintiff’s right and its technical infraction by defendant.

In New Orleans, M & T. R. R. Co. v. S. & A. T. Co., 53 Ala. 211, which urns an acl quocl damnum proceеding, the jury by their verdict found that appellant would not sustain any damage by the construction and maintenance of the telegraph line as proposed by the petitioner, and a decree was rendered by the court in accordance with the verdict. The point wаs made in this Court that the appellant was entitled to nominal damages, and it was insisted that the decree should be reversed for the failure to award them. The Court, speaking through Justice Manning, in reference to the contention, said: “It would have been more in harmony with the practice in suits at law, if, when no damage was proved, the jury had been instructed in this cause, ‍​‌​‌​‌‌​‌​‌‌​​‌‌​‌​‌​​​​​‌​​‌​‌​​‌‌​‌‌​‌​​​​​‌​​‍to render their verdict for a small specified sum as nominal damages. This practice was adopted in common law courts for conformity with the rule, which became established after the statute of Gloucester (C. Edw. I) that the party who failed in an action at law should be mulcted in costs. There are many cases in which a party may be entitled to a judgment,, although no damage be proved. For instance, where the act done is of such a charaсter that its repetition or continuance may become the foundation of an adverse right, the law, in the absence of any special injury, gives nominal damages, a. suit being necessary to preseiwe title; — Burden v. Stein, 24 Ala. p. 148, and cases cited. Nominal damages are allowed in such cases to entitle the party to- costs. But, since the statute in this case provides that the petitioner must pay the costs, and it wаs required to pay them, there is no sensible reason for setting aside a decree and verdict which did not allow merely nominal damages, when no damage was, in fact, sustained.” While it is true this case does not go- to the extent we must go- to affirm the judgment ‍​‌​‌​‌‌​‌​‌‌​​‌‌​‌​‌​​​​​‌​​‌​‌​​‌‌​‌‌​‌​​​​​‌​​‍here appealеd from, it does unmistakably recognize and approve the principle that nominal damages are not compensatory, and the refusal to award them deprives the party entitled to them of no property right.

In 8 Am. & Eng. Ency. Law, (2nd ed.) page 560 the rule is stated in this language: “It has been said that the failure to assess nominal damages Avas not in general an error AAdiich affected the substantial rights of the parties, and thаt, therefore, a judgment Avould not be reversed for failure alone to give nominal damages. When, hoAvever, nominal damages will go to еstablish some question of permanent right, there avüI be a reArersal of the judgment or a neAv trial awarded for an erroneous failure to give nominal damages and likewise if a. judgment for nominal' damages will entitle a- plaintiff to his costs.” A large number of cases from other Statеs are cited by the author which sustain the text. In a number of them the statutes regulating the recovery of costs are very similar to ours, and the сourts, in consonance Avith the vieAv expressed by us, refused to reverse the judgment in order to alioAv the plaintiff to recover one cent damages and one cent cost. See also 3 Cyc. p. 446.

Mr. Elliott, in his Avork on Appellate Procedure, § 636 states the rule to be this: “The dоctrine running throughout the adjudged cases is that a Avrong ruling is •not available as error unless it does harm in a material degree to the substantial rights of the complaining party. It is not enough that there is harm, it must be so important as to- merit the consideration of the -appellate tribunal and take something ‍​‌​‌​‌‌​‌​‌‌​​‌‌​‌​‌​​​​​‌​​‌​‌​​‌‌​‌‌​‌​​​​​‌​​‍of more than nominal Aralue from the party Avho alleges error. It is upon this principle that it is held that the failure to assess nominal damages may be placed in the category of harmless errors. But there may be cases Avhere a right of importance is to be vindicated by the assessment of nominal damages, and AAdiere this is so the failure to- assess nominal damages may be prejudicial, not, indeed, because of the amount involved but because of tbe right which requires vindication and establishment.”

This statement of the rule is toо broad, perhaps, and is not sanctioned by the weight of authority. The correct- rule, as we understand it, is that where there is no important right to be vindicated by the awarding of nominal damages, the failure to award them is not a reversible error unless the plaintiff ‍​‌​‌​‌‌​‌​‌‌​​‌‌​‌​‌​​​​​‌​​‌​‌​​‌‌​‌‌​‌​​​​​‌​​‍would he entitled to recover his full costs. And when, as here, to award nominal damages would only entitle plaintiff to recover nominal costs, this Court will not reverse the judgment for failure to do so. The breach of duty alleged in the second count of the complaint is not supported by the evidence.

Affirmed.

McClellan, C. J., Simpson and Anderson, J. J., concurring.

Case Details

Case Name: Blackburn v. Alabama Great Southern Railroad

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1904

Citation: 143 Ala. 346

Court Abbreviation: Ala.