Central of Georgia Ry. Co. v. Morgan

• Citation: 161 Ala. 483,49 So. 865
• Parties: CENTRAL OF GEORGIA RY. CO. v. MORGAN.
• Decision Date: 24 May 1909
• Court: Supreme Court of Alabama

49 So. 865

161 Ala. 483

CENTRAL OF GEORGIA RY. CO. v. MORGAN.

Supreme Court of Alabama

May 24, 1909

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Lott Morgan against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

London & London, for appellant.

Bowman Harsh & Beddow, for appellee.

MAYFIELD J.

This was an action by the appellee (plaintiff) against the appellant (defendant) as a common carrier for negligently carrying him past the station of his destination. The gravamen of the complaint was that the plaintiff was negligently carried by his station; and the complaint originally contained the allegation that the defendant's servants or agents on said train, in or about carrying the plaintiff past his station, used insulting and abusive language toward him, and that the plaintiff was greatly humiliated and suffered great mental and physical pain. The defendant interposed demurrers to the complaint, on several grounds; the one insisted upon most strongly being that there was a misjoinder of the causes of action, in that it was claimed that plaintiff was negligently carried by his station, and in addition thereto, in the same count, that the defendant's agents used insulting and abusive language toward the plaintiff.

It is true that, where there are separate and distinct torts inflicting separate and several injuries, each furnishing a separate and distinct cause of action, and to which there may be separate and different defenses, they may be joined in the same complaint, but should be presented in different counts. Shahan's Case, 116 Ala. 302, 22 So. 509; Dusenberry's Case, 94 Ala. 413, 10 So. 274. We do not think that this count was subject to this objection. The latter averment was evidently intended, and could only have the effect, to claim an additional element of special damages not necessary to be proven; but it is not necessary for us to decide this, for the reason that it affirmatively appears that the complaint was amended by striking out the phrase and allegation objected to and by adding a fourth count, which was based upon that wrong alone.

The trial resulted in a verdict in favor of the plaintiff for $500. The defendant made a motion for a new trial on several grounds, among others for that the damages assessed were excessive, and that it clearly appeared that damages were awarded under the influence of passion or prejudice. This motion for a new trial was heard by the court, and, upon consideration thereof, the court made and entered the following order: "June 26, 1907. Plaintiff remits all damages in excess of $250, and thereupon motion overruled. H A. Sharpe, Judge." To the refusal of the court to set aside the verdict and to grant a new trial, the defendant then and there duly excepted. It is true that the measure of damages in cases like this, in the absence of some element of gross disregard of the passenger's rights, or of facts showing insult or abuse, is compensation merely for the actual loss or injury sustained by the passenger. The carrier in such cases, however, is also responsible for the discomfort, inconvenience, expenses, and charges shown to have been the direct, natural,...