Ex parte McNeil

Decision Date18 December 1913
Citation63 So. 992,184 Ala. 420
PartiesEx parte McNEIL.
CourtAlabama Supreme Court

Certiorari to Court of Appeals.

Action by Albert McNeil against the Munson Steamship Line. Judgment for defendant was affirmed by the Court of Appeals (62 So 459), and plaintiff brings certiorari. Reversed and remanded.

Sayre J., dissenting.

Leslie B. Sheldon and Rich & Hamilton, all of Mobile, for appellant.

Hanaw &amp Pillans, of Mobile, for appellee.

McCLELLAN J.

Our opinion is that the writ of certiorari to the Court of Appeals should be granted to the extent hereinafter indicated.

The action is by the servant against the master for damages for personal injuries received by the former while in the service of the latter. A full statement of the case, as reported for the Court of Appeals, will be found in 62 So. 459-463. The complaint contained counts ascribing the injury to wanton or willful misconduct and counts ascribing the injury to simple negligence, for which, if sustained and unavoided, the defendant was responsible. The trial court gave, at the instance of the defendant, the general affirmative charge, denying the right of the plaintiff to recover on the wanton or willful counts, and submitted to the jury the issue of simple negligence vel non raised by the counts presenting that theory of liability. The Court of Appeals concluded that the trial court erred in thus taking from the jury the issue of wantonness or willfulness vel non as presented by counts predicated of that theory of liability. But the Court of Appeals adjudged that the stated error was rendered innocuous, for that the jury found against the plaintiff--for the defendant--on the issue of simple negligence vel non, the appellate court concluding, upon the evidence, that the finding of the jury against the plaintiff on the simple negligence counts necessarily comprehended a conclusion adverse to plaintiff on a fact or act or omission common to both his theory of liability for simple negligence and for wanton or willfull misconduct. This ruling of the Court of Appeals may be reduced to this legal formula: Where the plaintiff's complaint declares for liability in counts asserting simple negligence and counts asserting willful or wanton misconduct, to his proximately resulting injury, it is error without injury to give the affirmative charge against the plaintiff's right to recover under the counts alleging wanton or willful misconduct when the court submits to the jury the issue made by the counts averring simple negligence, and the jury returns a verdict for the defendant on such counts in simple negligence, provided there is a controlling fact, act, or omission common to the plaintiff's case under both theories of liability, viz., for simple negligence and for wanton or willful misconduct.

If the counts declaring as for simple negligence and the counts declaring as for wanton or willful misconduct presented identical issues of fact to the jury, the doctrine of error without injury could have application, as has been often ruled here. The distinction between causes of action rested upon simple negligence and those predicated of wanton or willful misconduct, as proximate causes of...

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79 cases
  • United States v. Henderson, 7793.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 7, 1941
    ...303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121; State v. Rossman, 64 S.D. 532, 535, 536, 268 N.W. 702, 703, 704; McNeil v. Munson S. S. Lines, 184 Ala. 420, 422, 63 So. 992, 993. Cause: Huffman v. United States, 8 Cir., 259 F. 35, 10 Cf.: People v. Maki, 245 Mich. 455, 458, 223 N.W. 70, 71; Peop......
  • Thomas v. Heard, 1150118
    • United States
    • Supreme Court of Alabama
    • March 24, 2017
    ...misconduct is characterized as such by the state of mind with which the act or omission is done or omitted." McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913)....’ " ’" Tolbert v. Tolbert, 903 So.2d 103, 114–15 (Ala. 2004) (quoting Ex parte Anderson, 682 So.2d 467, 470 (Al......
  • Norfolk Southern Ry. Co. v. Johnson, 1090011.
    • United States
    • Supreme Court of Alabama
    • July 8, 2011
    ...misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.” McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913)....’ ” ' ”Ex parte Essary, 992 So.2d 5, 9–10 (Ala.2007) (quoting Tolbert v. Tolbert, 903 So.2d 103, 114–15 (Ala.20......
  • Kendrick v. Birmingham Southern Ry. Co., 6 Div. 781
    • United States
    • Supreme Court of Alabama
    • October 19, 1950
    ...... Helms v. Central of Ga. Ry. Co. supra. .         The decisions in McNeil v. Munson S. S. Line, 184 Ala. 420, 63 So. 992; Sington v. Birmingham R., L. & P. Co., 200 Ala. 282, 76 So. 48; Coleman v. Hamilton Storage Co., 235 ......
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