Sloss-Sheffield Steel & Iron Co. v. Dickinson, 52 So. 594

Sloss-Sheffield Steel & Iron Co. v. Dickinson

52 So. 594 | Ala. | 1910

Lead Opinion

ANDERSON, J.

This is an action for assault and battery, and the appellant contends that, inasmuch as it charges a corporate wrong, the defendant was entitled to the general charge, under the Henry Case, 139 Ala. 161, 34 South, 389, and subsequent cases approving same. Whether the rule there laid down would or would not apply to an action of this character is immaterial, for, if it did, there was evidence from which the jury could infer that the whipping of the plaintiff was inflicted under a rule adopted by the defendant corporation and which was in existence at the time of the whipping. The state board promulgated certain rules as to inflicting corporal punishment, and the jury could infer that the defendant was operating its mine under said rules, and authorized and required corporal punishment when the task was checked up short, or when the coal cars contained slate and dirt. The defendant was not, therefore, entitled to the general *214charge upon the theory advanced in brief. — Daffin v. Zimmerman, 158 Ala. 637, 48 South. 109.

It is insisted that charge 2 should have been given for the defefidant, for the reason that the second count charges cruel and unreasonable punishment. It was a ■question for the jury as to whether or not the punishment was cruel and unreasonable. It was clearly unreasonable, if not given for a proper cause, and there was proof from which the jury could infer that it was cruel.

The first count of the complaint was in Code form, and contained no claim for mental anguish. This court, in the recent case of Powell v. Schimpf, 154 Ala. 665, 44 South. 1044, reaffirmed the case of Irby v. Wilde, 150 Ala. 402, 43 South. 574, and stated in the opinion in manuscript, but which is not reported in full, that compensatory damages could not be recovered in an action for assault and battery unless specially claimed. We now adhere to this rule, and hold that the trial court erred in refusing charge 4 requested by the defendant.

There was no error in refusing charge 6, requested by the defendant. There was proof from which the jury could infer that the defendant’s servants wrongfully caused the whipping, and if they so caused it the defendant would be liable, notwithstanding Hall may have been the deputy warden of the state.

For the error heretofore pointed out, the judgment of the law and equity court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.

Dissenting Opinion

MAYFIELD and SAYRE, JJ.

(dissenting).

We cannot accede to the proposition that a complaint in *215the Code form for an assault and battery will not authorize the recovery of actual damages for physical pain and injury, the result of the beating alleged. In this case the undisputed evidence showed that the plaintiff was whipped and beaten with a leather strap, and we are unable to understand why, if entitled to recover at all, he was not entitled to recover actual damages for the pain and suffering, the result of the beating, which was both alleged and proven. The result of the holding in this case is that, in an action for assault and battery, in which the complaint is in the form prescribed by the Code, the plaintiff cannot recover any actual damages, but only nominal or vindictive damages. We do not think this was the intention of the Legislature when it prescribed this form and made it sufficient; nor do we think the rule here announced consonant with a proper construction or application of the rules of pleading and practice, whether they be common-law or Code form. We think the Code form was intended, and is sufficient, to support a judgment for actual damages, if the evidence warrants it.

In this case, of course, it is conceded that the evidence warranted actual damages, if it did nominal damages. There can be no doubt that this complaint, in the Code form as it was, would authorize evidence that defendant beat plaintiff; and, if shown, as it was in this case, that he was so beaten with a leather strap, it certainly cannot be denied that pain and suffering were the natural consequence of such beating. This being true, it is difficult to assign a reason why such damages are not recoverable. The error the court has fallen into results from following a dictum in the case of Irby v. Wilde, 150 Ala. 402, 43 South. 574, and holding that, because there may be a technical assault and battery without pain or anguish, if such damages are sought to *216be recovered they are special, and must be specially pleaded. The questions decided in Irby’s Case were probably correctly decided, but the dictum which this case follows is wrong. The truth is that pain and suffering are necessary results of beating a person with a strap, or even with the hand or fist; and the damages resulting therefrom are general, as distinguished from special. If not, then there are no general damages in actions of assault and battery. The mere fact that the evidence in some cases might show that there was no pain or suffering does not prove that such are special and not general damages, when proven. In such cases it is a mere failure of proof, and not of pleading.

The rule that special damages, to be recovered, must be alleged with particularity, while general damages need not be specially pleaded, is a rule of pleading, not of fundamental right. The end of the rule is that the defendant may not be taken by surprise on the trial. It is, however, a rule of right that recoverable damages, whether general or special, must result proximately from the wrong charged. The necessary relation of cause and effect between the injury done and the damages suffered must, be shown. There are many cases which state in a loose way that general damages are such as necessarily result from the injury counted on. But the expression must be accepted with some reserve. General damages are such proximate damages as result in the usual course of things, and of which the defendant does not need to be specially informed. General damages are defined by the Supreme Court of Massachusetts as “only such damages as any other person, as well as the plaintiff, might, under the same circumstances, have sustained from the act set out in the declaration.” — Baldwin v. Western Railway Corp., 4 Gray (Mass.) 333. They are presumed to follow the wrong *217charged, though they may in fact he nominal only. Special damages are such as result proximately, but not ordinarily, from the wrong complained of. They are either superadded to general damages arising from an act injurious in itself, or are such as will arise from an act not actionable in itself, but injurious only in its consequences — such as really occur. Of a claim of such damages the defendant ought to be specially informed. The law of the subject was stated by Chief Justice Stone in Dowdall v. King, 97 Ala. 635, 12 South. 405. But, except in quotation, he found no use for the word “necessary”'in the description of general damages. See Wat. Per. Inj. § 690.