Porterfield v. Life & Casualty Co. of Tennessee

• Decision Date: 18 December 1941
• Docket Number: 6 Div. 844.
• Citation: 5 So.2d 71,242 Ala. 102
• Parties: Porterfield et al. v. Casualty Co. of Tennessee
• Court: Alabama Supreme Court

5 So.2d 71

242 Ala. 102

Porterfield et al. v. Casualty Co. of Tennessee

6 Div. 844.

Supreme Court of Alabama

December 18, 1941

Appeal from Circuit Court, Jefferson County; John Denson Judge.

Hugh A. Locke and Frank M. James, both of Birmingham, for appellants.

Sydney F. Keeble, of Nashville, Tenn., and Chas. H. Peay, and Smyer Smyer & Bainbridge, all of Birmingham, for appellee.

LIVINGSTON, Justice.

The Life & Casualty Company of Tennessee, a corporation, the defendant in the court below and appellee here, owned an apartment house located on Lakeshore Drive in Jefferson County, Alabama, and known as Lakeshore Apartments. The apartment house was destroyed by fire on the night of December 23, 1937.

Mrs Clara N. Porterfield and eleven other tenants and lessees of the defendant, who occupied apartments in the Lakeshore Apartments at the time it was destroyed, filed their separate suits against the defendant in the Circuit Court of Jefferson County, Alabama, claiming damages for the destruction of and injury to their personal property located in the Lakeshore Apartments. The cases were consolidated and tried at one and the same time.

For the purpose of abridging the record on the appeal in each of the above cases, the parties entered into an agreement, in part as follows:

"It is hereby agreed by and between said attorneys of record that the

pleadings, including the complaint, together with all amendments thereto, the demurrer, and the amendments thereto and the rulings thereon, the verdict of the jury, the written affirmative charge requested by the defendant and given to the jury by the court, and the judgment of the court in the Clara N. Porterfield case are all the same and identical with the pleadings, demurrer, the verdict of the jury, the written affirmative charge given at the request of the defendant and the judgment of the court in each of the other cases on this appeal, except that the items of damages claimed in the complaint as amended in each of the respective cases were as set forth in the bill of exceptions."

The complaint in the case of Clara N. Porterfield contains three counts A-1, B-1 and C-1. For answer to the complaint and to each and every count thereof, as last amended, the defendant pleaded in short by consent the general issue, with leave, etc.

The trial court gave the general charge for the defendant, hence this appeal.

On former appeal, the case of Life & Casualty of Tennessee v. Clara N. Porterfield, involving the same matters and things, resulted in reversal. 239 Ala. 148, 194 So. 173. On remandment, the plaintiff amended her complaint by adding counts A-1, B-1 and C-1, and striking out or withdrawing all other counts.

Counts A-1 and B-1 are substantially the same as counts A and D, which are set forth at length in the opinion rendered on former appeal, and are based on simple negligence.

This Court held in that case that sections 7 and 9 (set out in the opinion) of the lease contract between the parties were an effective bar to plaintiffs' right to recover for simple negligence. We have again considered the question and are convinced that the holding on former appeal is correct and should not be disturbed.

Count C-1, which appears in the report of the case, is founded on the willful and wanton injury to and destruction of plaintiffs' personal property by the defendant's agents, servants or employees acting in the line and scope of their authority as such. The complaint is that act or acts were willfully and wantonly done, not willfully or wantonly. This Court in the case of Adler v. Martin, 179 Ala. 97, 59 So. 597, 600, speaking through Justice Somerville, said:

"While in legal effect, for some purposes, wantonness is the equivalent of willfulness. (Mobile, J. & K.R. Co. v Smith, 146 Ala. 312, 40 So. 763; Montgomery St. R. Co. v. Lewis, 148 Ala. 134, 142, 41 So. 736), yet there is a difference in the two mental attitudes thus described, and the proof that may suffice to show the one may fall short of showing the other. Birmingham R., L. & P. Co. v. Ryan, 148 Ala. 69, 76, 41 So.

616. This distinction is clearly indicated by the definitions given in Birmingham R. & Elec. Co. v....