Bradley v. Walker

• Decision Date: 27 April 1922
• Docket Number: 6 Div. 640.
• Parties: BRADLEY v. WALKER.
• Court: Alabama Supreme Court

93 So. 634

207 Ala. 701

BRADLEY v. WALKER.

6 Div. 640.

Supreme Court of Alabama

April 27, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by Will Walker against Lee C. Bradley, as receiver of Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911 p. 449. Reversed and remanded.

Tillman Bradley & Baldwin and John S. Coleman, all of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

MILLER J.

Will Walker sued Lee C. Bradley as receiver of the Birmingham Railway, Light & Power Company to recover damages for personal injuries received by him when the street car operated by defendant collided with a truck on which he (plaintiff) was riding in the public streets of the city of Birmingham.

There are two counts in the complaint. The first charges the defendant with simple negligence; the second charges that the injuries were inflicted wantonly and wrongfully by defendant. The defendant pleaded general issue and contributory negligence. There was judgment for plaintiff, and the defendant appeals.

An automobile truck had broken down, could not run with its power, and plaintiff and Herbert Thompson were sent with wagon and team of mules to haul it to Birmingham. Plaintiff was riding on and guiding the truck which was chained to the wagon, and Herbert Thompson was in the wagon, driving the mules. While it was being pulled along in the public streets of Birmingham a street car operated by a motorman of defendant ran up behind the truck and into it. This threw plaintiff out and injured him, bruised his arm and leg, from which he suffered pain. The accident occurred early in the morning between daylight and sunrise.

The court overruled demurrers of defendant to count numbered 1. There is no negligence charged in it to the agents or servants of the defendant while acting in the line and scope of their employment. The negligence is charged to the defendant alone. This count avers facts showing a duty owed plaintiff by defendant to use due care not to injure him in the public streets. This duty was negligently breached under the averments, and the allegations therein show plaintiff was injured as a proximate result of the negligent act. Ala Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541 (headnotes 2, 3, and 4). By using these words, "negligently caused or allowed said street car to run upon or against said vehicle," etc., the count did not thereby state two district causes of action: it simply charged the same cause of action in different words: it used two words disjunctively, "caused or allowed," either of which tended to aver and aided in stating one and the same cause of action. The court did not err in overruling the demurrers. Morrison v. Clark, 196 Ala. 678, 72 So. 305; The Supreme Lodge, etc., v. Gustin, 202 Ala. 248, 80 So. 84; So. Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293.

These two written charges, separately requested by the defendant, were refused by the court:

"I charge you that you cannot award any damage to punish the defendant."

"I charge you, gentlemen of the jury, you cannot award any damages to plaintiff for the purpose of punishing the defendant."

There are two counts in the complaint. The second charges a wanton and wrongful infliction of the injuries. After the testimony closed one of the attorneys for plaintiff argued to the jury that-

They "should not only assess damages to compensate plaintiff for his injuries, but that they should in addition assess punitive damages."

He argued:

"Punitive damages should be imposed to deter defendant and his servants and agents from committing acts similar to the one by which the plaintiff received his injuries."

After the argument of attorneys closed, the court in its oral charge stated to the jury:

"He has stated his cause of action in another count of the complaint, called a wanton count; but at the request of the defendant in writing I will give you a written charge that the plaintiff cannot recover under that wanton count, leaving only for your consideration the plaintiff's cause of action contained in the negligence count which I have just outlined."

This eliminated the wanton count (No. 2) from the consideration of the jury. The defendant then requested the court to give those two charges. The witnesses were examined orally before the court and jury. After seeing and hearing them, the trial judge in effect declared by eliminating count 2, that there was no evidence or proof to support the charge of wanton and wrongful infliction of the injuries therein. The evidence as it appears in the record sustains his conclusion that defendant was liable, if at all, for compensatory damages based on the averments and proof tending to show simple negligence. There was no evidence showing or tending to show gross negligence or willfulness or wantonness. The court did not, in its oral charge, instruct the jury that they were not authorized under the evidence to assess punitive damages against the defendant.

The court by giving the general affirmative charge, with hypothesis, at the request of defe...