Austin v. Tennessee Biscuit Co., 6 Div. 150

CourtSupreme Court of Alabama
Citation52 So.2d 190,255 Ala. 573
Docket Number6 Div. 150
Decision Date29 March 1951

Page 190

52 So.2d 190
255 Ala. 573

6 Div. 150.
Supreme Court of Alabama.
March 29, 1951.
Rehearing Denied May 10, 1951.

[255 Ala. 575]

Page 192

D. G. Ewing and T. Eric Embry, of Birmingham, for appellant.

[255 Ala. 576] Sadler & Sadler, of Birmingham, for appellees.

[255 Ala. 575]

Page 191

These charges were given for defendants:

'C. Unless you are reasonably satisfied from all the evidence that the conduct of James Otis Edwards was the legal equivalent of an intention to injure the plaintiff, you cannot find for the plaintiff under count 2 of the complaint.'

'B. Wantonness is the legal equivalent of an intention to injure a person.'

Page 192

LAWSON, Justice.

This is a suit by Thelma McGinty Austin against the Tennessee Biscuit Company, a corporation, and James Otis Edwards to recover damages for injuries to the person of plaintiff and damage to her automobile resulting from a collision of the automobile driven by plaintiff and a truck owned by the corporate defendant and driven by the defendant James Otis Edwards.

The cause went to the jury on two counts, one charging simple negligence and the other wantonness. The defendants pleaded the general issue in short by consent in the usual form. There was a jury verdict for the plaintiff against both defendants, wherein plaintiff's damages were assessed at $1,875. Judgment was in accord with the verdict. Plaintiff filed a motion for a new trial, which was overruled. The appeal to this court is by the plaintiff, Thelma McGinty Austin.

It is settled by a long line of cases that on an appeal by the plaintiff from a judgment in his favor, we will not consider as revisable error any ruling of the trial court bearing merely on the naked question of defendant's liability, and not affecting the amount of the damages recovered, however erroneous it may be in fact, because, if error, such ruling is error without injury to the plaintiff. Donovan v. South & North A. R. Co., 79 Ala. 429; Carrington v. Louisville & N. R. Co., 88 Ala. 472, 6 So. 910; Glass v. Memphis & Charleston R. Co., 94 Ala. 581, 10 So. 215; Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775; Randle v. Birmingham R., L. & P. Co., 169 Ala. 314, 53 So. 918; Neyman v. Alabama G. S. R. Co., 172 Ala. 606, 55 So. 509; Fike v. Stratton, 174 Ala. 541, 56 So. 929; Morris v. Bragan, 195 Ala. 372, 70 So. 717; State v. Montgomery Savings Bank, 199 Ala. 365, 74 So. 942; Jones v. Woodward Iron Co., 203 Ala. 66, 82 So. 26; Holloway v. Henderson Lumber Co., 203 Ala. 246, 82 So. 344; Franklin v. Argyro, 211 Ala. 506, 100 So. 811; O'Quinn v. Alston, 213 Ala. 346, 104 So. 653, 39 A.L.R. 1263; Vance v. Myers, 213 Ala. 660, 106 So. 142; Davis v. Erwin, 214 Ala. 341, 107 So. 903; Cocke v. Edwards, 215 Ala. 8, 108 So. 857; Lowery v. Jones, 219 Ala. 201, 121 So. 704, 64 A.L.R. 553; Pounds v. General Motors Acceptance Corp., 220 Ala. 145, 124 So. 204; Beatty v. McMillan, 226 Ala. [255 Ala. 577] 405, 147 So. 180; Miller v. Thomason, 229 Ala. 267, 156 So. 773; Caudle v. Sears, Roebuck & Co., 236 Ala. 37, 182 So. 461; Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537. To like effect are the following decisions of the Court of Appeals: Huffstutler v. Chandler Transfer & Freight Line, 33 Ala.App. 182, 31 So.2d 302; Sims v. Warren, 32 Ala.App. 516, 27 So.2d 801, certiorari denied, 248 Ala. 391, 27 So.2d 803; Tennessee Coal, Iron & R. Co. v. Dunlap, 24 Ala.App. 515, 137 So. 320; Odum v. Coldwell, 21 Ala.App. 74, 105 So. 398; Jones v. Spradlin, 18 Ala.App. 29, 88 So. 373; Patt v. Welsch, 18 Ala.App. 82 89 So. 94.

Under this rule we pretermit any consideration of assignments of error 3, 4, 5, 10, and 11. All these assignments deal with the action of the trial court on matters relating to the legal liability of the defendants to the plaintiff. None of these assignments relate to the rules of law governing the proper measure of plaintiff's damages in the event of a recovery by her.

Assignments of error 1 and 2 relate to the action of the trial court in giving written charges C and B at the request of the defendants. It is argued, in effect, that the rule above alluded to has no application for the reason that these charges had the effect of eliminating from the jury's consideration the charge of wantonness as contained in the second count of the complaint, and thereby deprived plaintiff of the recovery of punitive damages.

We have considered the action of the trial court in giving these instructions without regard to the rule heretofore stated, and find no reversible error.

It is not reversible error either to give or refuse charges such as C and B given on behalf of defendants. In Vessel

Page 193

v. Seaboard Air Line R. Co., 182 Ala. 589, 591, 62 So. 180, 181, the trial court gave at the request of the defendant the following charges: '(1) The court charges the jury that wantonness is the moral equivalent of intention. (2) The court charges the jury that a wanton wrong is the moral and legal equivalent of an intentional wrong.' There was verdict for the defendant and on appeal to this court the plaintiff complained of the giving of those charges. We held the trial court did not err to a reversal in giving such charges, although they might be said to be misleading.

In Grauer v. Alabama Great Southern R. Co., 209 Ala. 568, 573, 96 So. 915, 919, it was said: 'Another group of charges (V and HH) instructed the jury that wanton injury, as here charged, is the legal equivalent of an intentional injury; that is, of intentionally killing or injuring some person on that occasion, or of intentionally allowing him to be killed. This, of course, does not mean that it must have been an actual intention to kill. Charges like these have been held as not erroneous, though possibly misleading, in Vessel v. S[eaboard] A[ir] L[ine] Ry. Co., 182 Ala. 589, 62 So. 180, citing the cases which support the proposition stated. In the instant case, the general instructions given to the jury could have left no doubt in their minds, as to the true elements of wanton injury.'

Neither the opinion nor the report of the case sets out charges V and HH, which were held to have been given without error in Grauer v. Alabama Great Southern R. Co., supra. However, we have gone to the original transcript in that case and find that those charges read as follows:

'Charge V: Before you can find that the plaintiff's intestate's death was wantonly caused, as charged in the fifth count of the complaint, the burden of proof is on the plaintiff to reasonably satisfy you from the evidence that some servant, agent or employee of the defendant intentionally caused or intentionally allowed the train to strike him on that occasion, or that such agent, servant or employee was guilty of such recklessness as amounted to the legal equivalent of an intention to injury or kill some person on that occasion.'

'Charge HH: The court charges the jury that when the plaintiff charged in the fifth count of his complaint that his intestate's death was wrongfully and wantonly caused on the occasion complained of, this is the legal equivalent of charging that some servant, agent or employee of the [255 Ala. 578] defendant intentionally caused or intentionally allowed the deceased to be killed on said occasion.'

On the other hand, in Alabama Great Southern Ry. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342, 344, we held that the trial court did not err in refusing to give at the defendant's request the following written charge: '(C) Before you can find that defendant's engineer wantonly damaged the plaintiff's truck, you must be reasonably satisfied from the evidence that said engineer was...

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