Jinright v. Archer, 78 So. 713

78 So. 713 | Ala. Ct. App. | 1918

The first two counts of the complaint sufficiently state a cause of action for simple negligence, and were not subject to the demurrers interposed.

The third count of the complaint alleged that plaintiff's injury was caused by the "recklessness, wantonness, and willfulness" of the defendant. This count was not subject to the demurrer interposed. Highland Ave. Belt R. R. Co. v. Robinson, 125 Ala. 483, 28 So. 28, in which case McClellan, C.J., says:

"The word 'recklessly,' when used conjunctively with 'wantonly,' always means something more than 'negligently.' The two words thus conjoined can never import less than such conscious disregard of and indifference to the probable consequences of the act to which they refer as is the legal equivalent of willful misconduct and intentional wrong."

In the case of Merrill v. Sheffield Co. et al., 169 Ala. at page 252, 53 So. 219, of the opinion, the difference between the conjunctive and the disjunctive conjunction is noted by the justice writing the opinion, and in passing upon the seventh count in that case, it will be noted that the charge is "negligently," "carelessly," and "wantonly," whereas in the instant case, the charge is "recklessness, wantonness, and willfulness." We are not unmindful of the case of Cartlidge v. Sloan, 124 Ala. 596, 26 So. 918, and what appears to be the holding in that case, nor do we undertake to reconcile the two cases. Suffice it to say, according to our view, the allegation of recklessness, when coupled with an allegation of wantonness and willfulness, imports more than simple negligence.

The foregoing precludes necessity for a further discussion of the various rulings of the trial court. We find no error in the record, and the judgment is affirmed.

Affirmed.