60 So. 530 | Ala. Ct. App. | 1912
In this case the fireman, without fault on the part of the conductor, left the engine at a time when a part of the train of cars — it was a freight train — was on the main line and the other part on a side track at Townley, a station 50 miles west of Birmingham. The crew of the train consisted of the conducto!’, the fireman who had left the train, two brakemen, the engineer, and a flagman. The train was on its way to Birmingham. Townley is evidently a place of minor importance, and the services of a fireman could not be obtained at that point unless, indeed, the conductor had induced the fireman who had left his engine to go back on the engine and resume his duties. This the conductor did -not do.
The above being the situation, an emergency existed which required prompt action on the part of appellant. While the train was a freight train, the law requires a common carrier, in and about the transportation of freight, to act with reasonable dispatch, and as the main line of the railroad was obstructed by a part of the train, it became the duty of appellant to clear that line of the obstruction to the end that the lives of travelers should not be endangered and the freight and passenger service of appellant should not be interfered with. There was evidence tending to show that on appellant’s road it was the custom for the “front” brakeman (the position occupied by Jess McCain) to supply the place of the fireman in case of such an emergency as above existed, and that it was not the custom for the “swing” brakeman (the position occupied by appellee) to supply the place of the fireman. The evidence shows, without dispute, that the conductor, in this emergency, ordered the appellee to get on the engine and act as fireman, that appellee refused to obey that order, that when he did so the conductor told him to get “his things and get off,” and that appellee complied with' that order and left the train. The evidence further tends to show that appellee applied to the station agent at Townley
Certainly the master, at any time, may put an end to a contract of employment for personal services. If he discharges his servant before the end of his term of employment and the discharge is for good and legally sufficient cause, the servant is without a right of action against the master for the damages suffered by him because of the breach by the master of the contract of employment. When therefore the conductor of appellant, clothed, by virtue of the emergency with which he was confronted, with the powers which the railroad company itself possessed in the premises, said to the appellee, “Take your things and get off this train,” an end was put to appellee’s contract of employment with appellant. The appellee — if indeed his contract of employment was by the month, as his testimony tends to show, instead of by the day, as appellant’s testimony tends to show — so accepted his dismissal. He does not appear to have again offered his services to appellant under his contract. Appellant seems to so have regarded it, for it does not appear to have again offered further employment under the contract to appellee.
In the present case the appellee’s presence on the freight train grew out of his contract of employment. But for the contract of employment he would have had no right whatever on that train, and it is impossible to dissociate from the contract of employment the wrongs of which appellee complains. The contract of employment is the basis of every wrong for which appellee claims the right to damages.
Except in rare instances, the law will not permit the recovery of punitive damages for the mere breach of a contract or for the breach of a duty springing out of a contract. In this case, as we have already stated, there was no public duty resting upon appellant by virtue of its contract with appellee, ihere was no willful trespass against or injury to the person of appellee, and the trial court committed error in submitting to the jury the subjects of mental pain and anguish and of exemplary damages. — Western Union Tel. Co. v. Westmoreland, 151 Ala. 319, 44 South. 382; B’ham Waterworks Co. v. Martini, 2 Ala. App. 652, 56 South. 830; W. U. Tel. Co. v. Rowell, 153 Ala. 295, 45 South. 73.
Reversed and remanded.
■ Note. — Tbe foregoing opinion was prepared by Judge de Graffenried, while be was a member of this court, and is adopted by tbe court.