Central of Georgia Ry. Co. v. Barnitz

• Citation: 14 Ala.App. 354,70 So. 945
• Decision Date: 10 February 1916
• Docket Number: 6 Div. 803
• Parties: CENTRAL OF GEORGIA RY. CO. v. BARNITZ.
• Court: Alabama Court of Appeals

70 So. 945

14 Ala.App. 354

CENTRAL OF GEORGIA RY. CO. v. BARNITZ.

6 Div. 803

Court of Appeals of Alabama

February 10, 1916

On Rehearing, March 4, 1916

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

Action by Mrs. Charles Barnitz against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

London & Fitts and W.S. Brower, all of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

PELHAM P.J.

In the original opinion in this case, we reversed the judgment of the lower court on the authority of the case of L. &amp N.R.R. Co. v. Quick, 125 Ala. 553, 28 So. 14. This court is required by statute to conform its holdings to the rulings of the Supreme Court, and on the original consideration we were impressed with the view that no distinguishable difference existed in the two cases that would authorize us to reach a different conclusion and apply a different rule as to the proper element of recoverable damages than that declared in the Quick Case, limiting the recovery to the harm and injury occasioned to the plaintiff in returning to her point of destination, and specifically excluding a right of recovery based on the events and happenings that transpired subsequently, and holding, as applied to the facts in that case, that such happenings were foreign to the issue and an independent cause of injury not connected with or following, in the ordinary course of events, from the wrong complained of, and could not be made the basis of a claim for damages. The court, upon reexamination, has reached the conclusion that the facts in the Quick Case, supra, are distinguishable from the facts in the case before it, and has withdrawn the former opinion reversing the judgment of the lower court, on the authority of that case.

We are unable to agree with the appellee's contention, so urgently insisted upon, that there was not a sufficient insistence in the appellant's original brief on the proposition upon which the case was reversed to require review of that question. As has been appositely stated in brief of counsel in another case (Western Union Tel. Co v. Emerson, 69 So. 335) on this proposition:

"It has been the universal practice in this state to discuss assignments of error and rulings of the trial court which are governed by the same general legal principle without repetition or separation. The practice is orderly and presents to the appellate court the ruling based upon the given principle in such manner as may be intelligently considered."

The question of the plaintiff being entitled to recover, as a proper element of damages, for the worry and anxiety she experienced after she had been carried to her destination (Childersburg) by the defendant company, and in going from Childersburg to her mother's home, is, we think, fairly and clearly raised by the rulings on the evidence, as well as charges made the basis of assignments of error, and requires our consideration and review of that question. The action was brought by the plaintiff to recover damages, as a passenger on one of the defendant's trains, for failure to notify the plaintiff of the arrival of the train at Childersburg, her destination, and in negligently failing to afford the plaintiff an opportunity to alight from the train at that point, and in carrying her to a station beyond, called Sylacauga. The complaint, in the three counts which were submitted to the jury, claimed damages for sickness, physical inconvenience, and mental anxiety or worry. The defendant filed pleas of the general issue to each count, and the case was tried on the issues thus tendered.

The evidence, without conflict, showed that the plaintiff (who was a married woman) boarded the defendant's train at Birmingham on a ticket entitling her to ride to Childersburg; that her ticket was taken up by the conductor, and that she was carried past, Childersburg to Sylacauga, where she was put off at about dusk, and had to wait in the station there for some time for a train upon which to return to Childersburg; that, if any arrangements were made by the defendant for carrying the plaintiff back to Childersburg, she knew nothing of it; that she purchased another ticket at Sylacauga to carry her to Childersburg, and returned to the latter place considerably after dark, riding upon the defendant's train on the ticket purchased by her at Sylacauga entitling her to such carriage as a passenger. The evidence was in conflict as to the defendant having been negligent in failing to call the station of the plaintiff's original destination (Childersburg), and affording her an opportunity of disembarking there on her original passage. The plaintiff testified to facts tending to show, or from which there was sufficient inference to submit the question to the jury, that, in addition to having been exposed to the cold while waiting in the station at Sylacauga, and having suffered other physical discomforts and inconveniences, resulting in her sickness, she also suffered mental worry and anxiety as a proximate consequence of the defendant's breach of duty. There was evidence that the plaintiff did not arrive at Childersburg, upon her return there from Sylacauga, until some time after dark, when she would have arrived before dark on the train upon which she took passage at Birmingham. There was also evidence in behalf of the plaintiff affording an inference that, in addition to the physical discomfort from the cold, etc., experienced by the plaintiff in going from the station at Childersburg to her mother's home in the country in the dark, she also suffered mental anxiety and worry. The three counts of the complaint on which the case was tried claimed damages for all of these different elements of damage as having been proximately caused by the negligent conduct of the defendant's agents or servants.

In the Quick Case the elements of recoverable damage, as applied to the facts in that case, were limited to the harm and injury occasioned to the plaintiff in returning to her point of destination; it being held in that case that what happened to the plaintiff (after the defendant returned her to her original destination) in going from the station to her son's home, and how that trip affected her, was foreign to the issue. The holding, as applied to the facts in that case, excluded as an element of recoverable damage mental worry and anxiety suffered by the plaintiff after she reached her destination on defendant's railroad, and while being carried in a private conveyance to her son's house. The distinction between the Quick Case and the case in hand lies in the fact that in the Quick Case the contract of carriage was completed by carrying the passenger to the station of her destination; that is, after carrying her past the station, the defendant, in completing its contract of carriage, returned the passenger to her destination. Not so in the instant case, where it appears that the passenger was carried past her destination and left to her own resources to reach her destination, which she accomplished by entering into a different obligation, or contract, by purchasing, at her own expense, another ticket entitling her to ride as a passenger from Sylacauga to Childersburg. In this case the original contract of carriage has never been completed by the carrier returning the passenger to the point of her destination. Consequently the mental worry and anxiety suffered in going from the station at Childersburg to her mother's home, under the facts in this case, was not based on happenings transpiring subsequent to the completion of the defendant's contract of carriage. The discomfort and inconvenience experienced, and mental worry and anxiety proximately resulting therefrom, suffered by the plaintiff in going from the station to her mother's home, are, then, proper elements of recoverable damage as the direct, natural, and proximate result of the breach of the contract of carriage, or recoverable as an aggravation of such damage. Central of Ga. Ry. Co. v. Morgan, 161 Ala. 486, 49 So. 865; L. & N.R.R. Co. v. Seale, 172 Ala. 484, 55 So. 237; E.T., V. & G. Ry. Co. v. Lockhart, 79 Ala. 315; L. & N.R.R. Co. v. Dancy, 97 Ala. 340, 11 So. 796. It follows that we are of the opinion that the trial court was not in error in admitting in evidence as a basis of recoverable damage what happened to the plaintiff after arriving at Childersburg, and while going to her mother's home, or in refusing charges requested by the defendant limiting the damages to injuries suffered before leaving the station at Childersburg.

Many of the matters assigned as error are lot argued or insisted upon in appellant's brief, further than to practically restate the assignment of error made on the record, and are waived. Comstock v. Jahant Heating Co., 10 Ala.App. 663, 64 So. 178, and authorities there cited. The assignments of error sufficiently insisted upon to require review, aside from the proposition we have discussed, do not show error available to appellant requiring a reversal, and do not, we think, require discussion.

Affirmed.

On Rehearing.

BROWN J.

On re-examination of the case, the opinion prevails that a rehearing should be granted, the judgment of reversal set aside, and the judgment affirmed, and the writer concurs in this conclusion for the reasons following:

This is an action by a passenger against the carrier for a breach of the duty resting on the carrier to exercise reasonable diligence to give the passenger notice that the train on which she was being carried had reached her destination and reasonable opportunity to alight therefrom. Ala. City Gadsden & Attalla Ry. Co. v. Cox, 173 Ala. 629, 55 So. 909; Southern Ry. Co. v. Herron, 68 So. 551. The...