Birmingham S.R. Co. v. Gunn
| Decision Date | 21 July 1904 |
| Citation | 37 So. 329,141 Ala. 372 |
| Parties | BIRMINGHAM S. R. CO. v. GUNN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.
Action by William D. Gunn, administrator of the estate of Ethridge Nunnlee, against the Birmingham Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
A. G. & E. D. Smith, for appellant.
Bowman, Horsh & Beddow, for appellee.
This cause was tried upon the fourth count of the complaint, and upon no other. In that count the wrong averred is that "defendant wantonly or intentionally caused the death of plaintiff's intestate by wantonly or intentionally causing one or more of said cars to run upon or against plaintiff's intestate," etc. In City Delivery Co. v. Henry (decided at last term) 34 So. 389, this court, through its chief justice, said of a similar charge made against a corporation: "We see no escape from the conclusion that the wantonness, willfulness, and intentional wrong thus averred are the wantonness, willfulness, or evil intention itself, as contradistinguished from the wrong of the servant only, for the consequences of which the defendant is responsible merely because of its relation of employer," etc.; and it was held the action was in trespass, and that to sustain such an averment "proof of actual participation on the part of the defendant in the damnifying act was essential." In this cause there was no evidence that the defendant corporation itself committed or actually participated in the commission of a wrong such as is averred in the fourth count. Therefore, and on the authority of the decision above referred to, together with that rendered in Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930, and Southern Ry. Co. v. Yancy, 37 So. 341,
it must be held that there was error in the refusal of the general affirmative charge requested by the defendant.
In view of the character of the complaint and of the evidence, it seems unnecessary to consider other questions raised by the record.
Reversed and remanded.
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