Day v. Downey

• Decision Date: 24 January 1952
• Docket Number: 1 Div. 482
• Citation: Day v. Downey, 256 Ala. 587, 56 So.2d 656 (Ala. 1952)
• Parties: DAY v. DOWNEY.
• Court: Alabama Supreme Court

Page 656

56 So.2d 656

256 Ala. 587

DAY v. DOWNEY.

1 Div. 482.

Supreme Court of Alabama.

Jan. 24, 1952.

Adams & Gillmore, Grove Hill, for appellant.

T. Watrous Garrett, Grove Hill, for appellee.

Plaintiff's witness Mitchell testified on direct examination that, as a member of the State highway patrol, he investigated the accident, and that at a later date he had a conversation with defendant Day; that Day stated to witness that he (Day) 'first told me he was driving the car, but that since he thought about it, he wanted to tell the truth about (it) and that he was not driving the car.' On cross-examination witness was asked by defendant, 'Is it not true that you said to Mr. Day in that same conversation that you were recalling a while ago that you had already concluded that he was not driving the automobile?' Plaintiff's objection to this question was sustained, and this ruling is made the basis of assignment 7.

In the court's oral charge the following appears: 'Damages in civil actions of this kind are not only for the purpose of compensation, but also may be as punishment,' etc.

Defendant's exception to this portion of the oral charge is made the basis of assignment 8.

FOSTER, Justice.

There were two counts on which this action was tried. Both are based on a claim of willfully or wantonly causing the death of plaintiff's intestate. In Count A the wrong is charged to the defendant Day who is alone sued. In Count B it is charged to one Dunn, alleged to have been the agent, servant or employee of defendant Day, and acting in the line and scope of his employment. Both counts allege that decedent Downey was at the time riding in the car owned by defendant as his guest. They both allege that his death resulted as a proximate consequence of the willful or wanton conduct there alleged. Count A, that it was defendant's willful or wanton conduct; and B, that it was the defendant's agent, servant or employee whose willful or wanton conduct caused Downey's death. The quo modo of the willful or wanton conduct is not alleged, which is not necessary. Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386.

The first question on this appeal is whether the court properly sustained plaintiff's demurrer to pleas 2 and 3. Plea 2 was directed to Count A, and plea 3 to Count B. They present the same question. Plea 2 is as follows: 'That the defendant, at the time and place alleged, was intoxicated to such extent as to render him incompetent to operate said automobile and that fact was known to plaintiff's intestate when he became a guest passenger in said automobile; that the accident resulted proximately from the intoxicated condition of the defendant; wherefore, defendant charges that plaintiff's intestate assumed the risk incident to his becoming a passenger in said automobile and that plaintiff cannot recover.'

They are both subject to the same principles. Neither count alleges that the party who caused plaintiff's intestate's death was incompetent or intoxicated and that such condition was connected with or caused the damnifying act. But both are predicated upon either a willful or a wanton injury. Byram & Co. v. Bryan, 224 Ala. 466, 140 So. 768. To be a willful injury, it must have been an intentional one and distinguished from an intentional act merely. To be a wanton injury, he must have been conscious of his conduct and that injury would likely result therefrom, and, with reckless indifference to the consequences, he intentionally did a wrongful act or omitted a known duty, which produced the injurious result. Birmingham R. L. & P. Co. v. Cockrum, 179 Ala. 372, 381, 60 So. 304; 15 Ala.Dig., Negligence, 302, k11.

Of course, a special plea must be consistent with the allegations of the complaint, and either expressly or impliedly admit them. These pleas do not expressly admit them, but they impliedly do so, not denying them. Count A alleges that the death of plaintiff's intestate was the proximate consequence of defendant's willful or wanton conduct. The plea to it alleges that it resulted proximately from the intoxicated condition of defendant. Reading that into the complaint, it means that the willful or wanton injury which proximately caused intestate's death was itself the proximate result of defendant's intoxication, and that when the injured man became a guest passenger he knew that defendant was so intoxicated as to be incompetent to operate the automobile. Of course, he did not know defendant would willfully or wantonly injure him. But it is possible that a condition of intoxication which would render a driver incompetent to operate an automobile could stimulate a sense of conscious recklessness in the face of known danger which would be wantonness, but would it stimulate an intention to injure another without provocation? As to that aspect of the complaint, the contention would rest on thin ice. The plea must be an answer to all aspects of the complaint. The evidence might show a willful injury as alleged.

But aside from that, the plea does not allege that the deceased, when he became a guest, appreciated the danger to himself likely to result from the willful or wanton conduct of defendant stimulated by his incompetence as a result of his drunkenness. An appreciation of the risk is a necessary element of the principle sought to be applied. Foreman v. Dorsey Trailers, Inc., Ala.Sup., 54 So.2d 499; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508, and many other cases. The injured party might have known of the drunken condition of defendant, but have himself been too drunk to appreciate the danger of riding with him. And the evidence shows he had been drinking heavily. Or he might have supposed that defendant, although drunk, would not intentionally or wantonly cause his injury or death. Tallassee Falls Mfg. Co. v. Moore, 158 Ala. 356(2), 48 So. 593.

These are questions which are not discussed in briefs, but we think they should be pointed out even though controlling effect is not given them. But assuming that the plea alleges not only knowledge by the injured party of the circumstances from which danger might arise, but also an appreciation of the danger, and that all of it was voluntarily assumed by deceased, the question presented in argument is whether such a plea is a good answer to a willful or wanton count. For reasons which were carefully analyzed in Foreman v. Dorsey Trailers, Inc., supra, we think the pleas were not good as an answer to the counts, not considering the matter referred to above, as to which no contention is here made. Although plaintiff's intestate may have been sober enough to know and appreciate the danger of riding as a guest of defendant on account of his drunken condition, and have voluntarily done so, it does not follow that defendant could willfully or wantonly kill him without legal responsibility for so doing. Our cases have adopted that view of it, as pointed out in the Dorsey case, supra. See, Louisville & N. R. R. Co. v. Markee, 103 Ala. 160, 15 So. 511; Louisville & N. R. R. Co. v. Orr, 121 Ala. 489, 499, 26 So. 35; Central of Georgia R. Co. v. Partridge, 136 Ala. 587, 596, 34 So. 927; Davis v. Smitherman, 209 Ala. 244(4), 96 So. 208.

On the basis of appellant's interpretation of the law in respect to the principle which we have argued, he insists that he was entitled to the affirmative charge without those pleas. But a plea was necessary to raise the issue of assumption of risk. Mobile Electric Co. v. Sanges, 169 Ala. 341, 53 So. 176. Of course, if for any reason the injury to deceased and his subsequent death were not the proximate result of the willful or wanton act of defendant or his servant, plaintiff cannot recover at all. But there was evidence from which the jury could find that a wanton injury to or the death of the deceased was caused by defendant. The principle relied on by appellant, if not sound for the purpose of sustaining plea 2, supra, certainly would not support the general charge for defendant without a sufficient plea. What we have said, we think sufficiently answers assignments 1, 2, 3 and 5.

Assignment No. 4.

Appellant contends that he was entitled to the affirmative charge on Count B for the additional reason that the wrongful act is there charged to Dunn, an agent, servant or employee of defendant Day, acting in the line and scope of his employment, and that this is not sustained by any aspect of the evidence.

It seems to be virtually conceded by counsel for appellee, as well as appellant, that the evidence shows that they were on a joint enterprise. Being so, appellant contends that Dunn, alleged in Count B to have caused...