Louisville & Nashville R. R. v. Melton

47 So. 1024 | Ala. | 1908

DOWDELL, J.

But one question is presented for our consideration, and that arises on the action of the lower court in overruling the demurrer of defendant, appellant here, to the complaint. The complaint contained two counts, in both of which it is charged that the defendant’s servant, and employe, in the operation of one of defendants locomotive engines, by loud and terrifying noises unnecessary in the operation of the engine, intentionally freia dencd plaintiff’s' horse “to the extent that it died from fright.” The demurrer interposed contained a single ground, viz.: “For that the only claim made in said complaint is for alleged fright of the horse, unaccompanied by any bodily injury inflicted by the defendant, and the complaint therefore states no cause of action.”

On demurrer, facts stated in the complaint or plea demurred to are to be taken as confessed. The “claim” made in the complaint is that the horse died from fright, and that the fright was caused by the wrong of the dePendant’s servant. The claim, therefore, is for more than the “alleged fright of the horse.” It is for the death of the horse, caused by the alleged fright. The demurrer admits that the alleged fright caused the death, and if this is true it is unimportant that it was “unaccompanied by any bodily injury inflicted.” The damages claimed are for the loss of the horse; and, if the loss was the direct and proximate result of the wrong of the defendant, it is immaterial as to the agency employed in causing the damage. The case of Pullman Co. v. Lutz, 154 Ala. 517, 45 So. 675, 14 L. R. A. (N. E.) 907, cited by eounsel for appellant, involved a different question from that- here presented. The question there presented was whether damages could be had for mental pain and distress occasioned by fright; and in that case, while the court was divided, it was ruled by the majority that such damages were recoverable.

While the complaint in the present case may have been objectionable on some other ground, it wa« not open to the ground of demurrer stated. It followes, from what we have said, that the judgment must be affirmed.

Affirmed.

Tyson, V. .]., and Andkkson and MoCdedlan, JJ., concur.