Bradley v. Walker

Apr 27, 1922
6 Div. 640.
Versions:93 So. 634
207 Ala. 701
1922 Ala. LEXIS 269
MILLER, J.

Will Wаlker sued Lee C. Bradley as receiver of the Birmingham Railway, Light & Power Company to recover damages for personаl injuries received by him when the street car operated by defendant collided with a truck on which he (plaintiff) was riding in the public strеets of the city of Birmingham.

There are two counts in the complaint. The first charges the defendant with simple negligence; the sеcond charges that the injuries were inflicted wantonly and wrongfully by defendant. The defendant pleaded general issue and cоntributory negligence. There was judgment for plaintiff, and the defendant appeals.

An automobile truck had broken down, could nоt run with its power, and plaintiff and Herbert Thompson were sent with wagon and team of mules tp haul it to Birmingham. Plaintiff was riding on and guiding the truck which wаs chained to the wagon, and Herbert Thompson- was in the wagon driving the mules. While it was ‍‌‌‌‌‌‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌‌​‌​​‌‌‌​​‌‌‌​‌‌​‌​‌​‌‌​‍being pulled along in the public streets of Birmingham'а street car operated by a motorman of defendant ran up behind the truck and into it. This threw plaintiff out and injured him, bruised his arm and lеg, from which he suffered pain. The accident occurred early in the morning between daylight and sunrise.

The court overruled demurrers of defendant to count numbered 1. There is no negligence charged , in it to the agents or servants of the defendant while acting in the line and scope of their employment. The negligence is charged to the defendant alone. This count avers fаcts showing a duty, owed plaintiff by defendant to use due care not to injure him- in the public streets. This duty was negligently breached under the аverments, and the allegations therein show plaintiff was injured as a proximate result of the negligent act. Ala. Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 South. 541 (headnotes 2, 3, and 4). By using these words, “negligently caused or allowed said street car to run upon or against said vehicle,” etc., the count did not thereby state two distinct causes of action; it simply charged the same cause of action in different words: it used two words disjunсtively, “caused or allowed,” either of which tended to aver and aided in stating one and the same cause of action. The court did not err in overruling the demurrers. Morrison v. Clark, 196 Ala. 678, 72 South. 305; The Supreme Lodge, etc., v. Gustin, 202 Ala. 248, 80 South. 84; So. Ry. Co. v. Arnold, 162 Ala. 570, 50 South. 293.

These two written charges, separately requested by the defendant, werе refused by the court:

“I charge you that you cannot award any ‍‌‌‌‌‌‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌‌​‌​​‌‌‌​​‌‌‌​‌‌​‌​‌​‌‌​‍damage to punish the- defendant.”
“I charge you, gentlemen of the jury, you cannot award any damages to plaintiff for the purpose of punishing the defendant.”

There are two counts in the complaint. The second charges a wanton and wrongful infliction of the injuries. After the testi *703 mony closed one of the attоrneys for plaintiff argued to the jury that—

They “should not only assess damages to compensate plaintiff for his ‍‌‌‌‌‌‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌‌​‌​​‌‌‌​​‌‌‌​‌‌​‌​‌​‌‌​‍injuries, but that they should in addition assess punitive damages.”

He argued:

“Punitive damages should be imposed to deter defendant and his servants and agents from committing acts similаr to the one by which the plaintiff received his injuries.”

After the argument of attorneys closed, the court in its oral charge statеd to the jury:

“He has stated his cause of action in another count of the complaint, called a wanton count; but at thе request of the defendant in writing I will give you a written charge that the plaintiff cannot recover under that wanton count, leaving only for your consideration the plaintiff’s cause of action contained in the negligence count which' I have just outlined.”

This еliminated the wanton count (No. 2) from the consideration of the jury. The defendant then requested the court to give those two charges. The witnesses were examined orally before the court and jury. After seeing and hearing them, the trial judge in effect declared by eliminating count 2, that there was no evidence or proof to support the charge of wanton and wrongful inflictiоn of the injuries therein. The evidence as it ‍‌‌‌‌‌‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌‌​‌​​‌‌‌​​‌‌‌​‌‌​‌​‌​‌‌​‍appears in the record sustains his conclusion that defendant was liable, if at аll, for compensatory damages based on the aver-ments and proof tending to show simple negligence. There was nо evidence showing or tending to show gross negligence or willfulness or wantonness. The court did not, in its oral charge, instruct the jury that they were not authorized under the evidence to assess punitive damages against the defendant.

The court by giving the general affirmative charge, with hypothesis, at the request of defendant, as to count 2, the wanton count, decided there was no evidenсe tending to prove gross negligence, or a wanton and wrongful injury of the plaintiff. We concur in that conclusion. In B. R. L. & P. Co. v. Wise, 149 Ala. 492, 499, 42 South. 821, 823, this court wrote:

“Punitive damagеs are not recoverable for simple negligence, but the recovery in-such ease is for compensatory damаges.”

The plaintiff was not entitled to recover of defendant punitive or exemplary damages under count 1 of the complaint. It was the simple negligence count. B. R. L. & P. Co. v. Wise, 149 Ala. 492, headnote 5, 42 South. 821; B. R. L. & P. Co. v. Nolan, 134 Ala. 329, 32 South. 715; L. & N. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21; Roach v. Wright, 195 Ala. 333, 70 South. 271; Bowles v. Lowery, 5 Ala. App. 555, 59 South. 696. It is true the Court of Appeals in the case ‍‌‌‌‌‌‌‌‌‌​​‌‌​​‌​‌​​‌​‌‌‌​‌​​‌‌‌​​‌‌‌​‌‌​‌​‌​‌‌​‍of Birmingham Water Wks. Co. v. Brooks, 76 South. 518, 16 Ala. App. 209, and in the case of W. U. Tel. Co. v. Williams, 16 Ala. App. 420, 78 South. 414, holds to thе contrary; but these eases on this point have not been approved by this court, and they are not sustained by the decisiоns of this court since L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21. The case of Sparks v. McCreary, 156 Ala. 382, 47 South. 332, 22 L. R. A. (N. S.) 1224, cited by the Court of Appeals in 16 Ala. App. 420, 78 South. 414, does not sustain them.

When plaintiff’s attorney made the argument for punitive damages to be assessed, these damages were in issue, as count 2, the wanton count, was then in the case. The defendant could not then havе objected successfully to it. The argument was proper at that time. The court afterwards eliminated count 2 in its oral charge; hence after the argument and after count 2 was eliminated by the court the defendant properly requested thosе two written charges. Under the circumstances of this case they should have been given, as they state the law applicable to this case correctly. The jury should have been instructed after that argument, legitimate when made, that punitive damagеs could not be awarded by them. The particular facts stated clearly differentiate this case from Roach v. Wright, 195 Ala. 333, 70 South. 271, as to giving the charges, and from L. & N. R. R. Co. v. Holland, 173 Ala. 6S9, 55 South. 1001, and B. R. L. & P. Co. v. Chastain, 158 Ala. 428, 48 South. 85, as to raising the question by objecting to the argument.

For the еrrors mentioned, the case must be reversed. The complaint may be amended, and the testimony may be different on another trial; hence it is not necessary and will serve no good purpose for us to pass on the other errors assigned and argued.

Reversed and remanded^

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.