Bube v. Birmingham Ry., Light & Power Co.

Decision Date19 April 1904
Citation37 So. 285,140 Ala. 276
CourtAlabama Supreme Court
PartiesBUBE v. BIRMINGHAM RY., LIGHT & POWER CO.

Appeal from Circuit Court, Jefferson County.

Action by George H. Bube against the Birmingham Railway, Light &amp Power Company to recover damages for personal injuries to plaintiff's minor son. From a judgment granting a motion for a new trial after verdict in favor of plaintiff, he appeals. Affirmed.

The complaint contained two counts. The first count claimed $5,000 for the simple negligence of the defendant in causing or allowing one of its street cars to run upon or drag said Jacob Bube, inflicting personal injuries, by reason of which the "plaintiff was put to great trouble, inconvenience and expense for medicine, medical attention, care, and nursing in and about his efforts to heal and cure the wounds and injuries of said Jacob Bube, and plaintiff was deprived of the services and society of his said minor son," etc. In the second count it was alleged that the injuries complained of were "wantonly or intentionally caused" by the defendant. The defendant pleaded the general issue and several special pleas, setting up the contributory negligence of the plaintiff's minor son. During the trial of the case, and after the introduction of all the evidence, the court, at the request of the plaintiff gave to the jury the following written charge: "If the jury find for plaintiff under the second count of the complaint, then they have the right, in their sound discretion, to award punitive damages in addition to actual damages." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by it: "(1) I charge you that in case of this kind the plaintiff cannot recover punitive or exemplary damages. (2) I charge you that in actions of this kind there can be no recovery of damages for mental pain of the father caused by an injury to his son." The jury returned a verdict assessing the plaintiff's damages at $750, and judgment was rendered accordingly in favor of the plaintiff. Thereafter the defendant made a motion for a new trial upon the following grounds: "(1) For that the court erred in charging the jury that the plaintiff might recover punitive or exemplary damages against defendant. (2) For that the court erred in refusing to give this charge to the jury which was requested by the defendant in writing: 'I charge you that in a case of this kind the plaintiff cannot recover punitive or exemplary damages.' (3) For that the court erred in refusing to give this charge to the jury, which was requested by the defendant in writing: 'I charge you that in actions of this kind there can be no recovery of damages for mental pain of the father caused by an injury to his son.' (4) For that the court erred in giving to the jury, at the written request of the plaintiff, the following charge: 'If the jury find for the plaintiff under the second count of the complaint, then they have the right, in their sound discretion, to award punitive damages in addition to actual damages.' "

Bowman, Harsh & Beddow, for appellant.

Walker, Tillman, Campbell & Walker, for appellee.

Punitive or exemplary damages are not recoverable in an action brought by a parent for loss of a minor child's services resulting from a wrongful injury to that child. The form of the action is "per quod servitium amisit," and has its origin in the common-law idea that the parent is entitled to the child's services during its minority. The parent recovers, not for the injury inflicted upon the child, but for the loss of the child's services resulting from that injury. Pratt C. & I. Co. v. Brawley, 83 Ala. 374, 3 So. 555, 3 Am. St. Rep. 751; Cowden v. Wright, 35 Am. Dec. 633. The Alabama court has expressly decided that the damages recoverable by parent for loss of services resulting from a wrongful injury to the child are purely and solely compensatory, in the cases of Williams v. S. & N. A. R. R. Co., 91 Ala. 638, 9 So. 77, and Stewart v. L. & N. R. R. Co., 83 Ala. 493, 4 So. 373. See, also, L., N. A. & C. Ry. Co. v. Goodykoontz (Ind. Sup.) 21 N.E. 472, 12 Am. St. Rep. 371; Black v. Carrollton R. R. Co., 63 Am. Dec. 586; Cowden v.

Wright, 35 Am. Dec. 633; Penn. R. Co. v. Kelly, 31 Pa. 372; 8 Amer. & Eng. Encyc. of Law, 924, 910.

The parent cannot recover for mental distress and anxiety on account of injuries sustained by his minor child. This principle is as well settled as the one we have already discussed, and the same reasons for that rule apply to this one. The measure of damages being purely compensatory recovery cannot be had for injuries which are speculative, uncertain, and fanciful, as mental pain and anguish. To allow this kind of damage would defeat the very object of the rule, which denies punitive or exemplary damages. Damages for mental pain and anguish not being measurable by any fixed and definite rule, the jury would be allowed to assess whatever amount they pleased. Black v. Carrollton R. R. Co., 63 Am. Dec. 588; Fox v. Oakland St. R. Co. (Cal.) 50 P. 25, 62 Am. St. Rep. 216; Pierce v. Conners (Colo. Sup.) 37 P. 721, 46 Am. St. Rep. 279; Morgan v. So. Pac. R. R. Co. (Cal.) 30 P. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143; Chicago v. Major, 68 Am. Dec. 553; Ohio & Miss. R. Co. v. Tindall, 74 Am. Dec. 259; State v. B. & O. R. R. Co., 87 Am. Dec. 600; Chicago R. Co. v. Swett, 92 Am. Dec. 206; Potter v. Chicago R. Co., 94 Am. Dec. 548; Agr. Ass'n v. State (Md.) 18 A. 37, 17 Am. St. Rep. 507; ...

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26 cases
  • Beaulieu v. Great N. Ry. Co.
    • United States
    • Minnesota Supreme Court
    • 27 Diciembre 1907
    ...323,7 L. R. A. (N. S.) 518, 114 Am. St. Rep. 587, and cases cited in note; Flemington v. Smithers, 2 Car. & P. 292; Bube v. Birmingham Light Co., 140 Ala. 276,37 South. 285,103 Am. St. Rep. 33;Black v. Carrolton Railway Co., 10 La. Ann. 33, 63 Am. Dec. 586;Hartford Co. v. Hamilton, 60 Md. 3......
  • Fowler Butane Gas Co. v. Varner
    • United States
    • Mississippi Supreme Court
    • 21 Mayo 1962
    ... ... Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145; Bube v. Birmingham Railway, Light & Power Co., 140 Ala. 276, 37 ... ...
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    • United States
    • Minnesota Supreme Court
    • 27 Diciembre 1907
    ...41 South. 323, 7 L. R. A. (N. S.) 518, 114 Am. St. 587, and cases cited in note; Flemington v. Smithers, 2 Car. & P. 292; Bube v. Birmingham, 140 Ala. 276, 37 South. 285, 103 Am. St. 33; Black v. Carrollton, 10 La. An. 33, 63 Am. Dec. 586; County Commrs. v. Hamilton, 60 Md. 340, 45 Am. 739;......
  • Sloss-Sheffield Steel & Iron Co. v. Drane
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 31 Marzo 1908
    ... ... public wrongs. ' So. Ry. Co. v. Bush, 122 Ala ... 489, 26 So. 168 ... for the jury to determine, whether in the light of the facts ... he remained a member of the family. You ... L. Ry. Co. v. Hill, 146 ... Ala. 240, 40 So. 612; Bube v. Br. L. & P. Co., 140 Ala. 276, ... 37 So. 285, 103 ... ...
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