Louisville & N. R. Co. v. Perkins

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Louisville & N. R. Co. v. Perkins, 152 Ala. 133, 44 So. 602 (Ala. 1907)
• Decision Date: 02 July 1907
• Parties: LOUISVILLE & N. R. CO. v. PERKINS.

44 So. 602

152 Ala. 133

LOUISVILLE & N. R. CO. v. PERKINS.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.

Action by W. L. Perkins, as administrator of Isaac R. Dyke, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action by W. L. Perkins, as administrator of Isaac R Dyke, to recover damages for the death of his intestate. The first count predicated recovery upon simple negligence, and the other two counts were for wanton, willful, or intentional conduct which resulted in injury producing death. Plea 7 is in the following language: "This defendant says it denies that the plaintiff was ever appointed administrator of the estate of said Isaac R. Dyke before the bringing of this suit." Demurrers were interposed to this plea, setting up that it was in effect a collateral attack upon the appointment of the administrator, and because such questions could not be properly pleaded in this action.

The evidence for the plaintiff tended to show that the intestate was an old man, over 80 years of age; that he was placed on a Louisville & Nashville train at Mobile, with a ticket to Geneva; that it was necessary for him to change cars at Georgianna; that his trunk was put off at Georgianna; and that, although the train stopped there the usual time, the old man was not seen to have gotten off, and no one seems to have known whether he got off or not. He was found the next morning, about half way between the station of Georgianna and Chapman, almost frozen to death, and from the effects of which he died. One witness testified that on a January evening, when the weather was very cold, he saw this particular train passing near the point where the old man was found, and at that time he saw two white men in the uniform of the Louisville & Nashville Railroad Company come onto the rear platform of the rear car, and while the train was running shove or push the old man, not from the steps, but from the platform, of the car. At the place where the old man was found it was rough and uneven, and on an embankment at the foot of which was a pond of water. The evidence for the defendant tended to dispute all these propositions very strongly, except that it was admitted that the old man was a passenger to Geneva, and that he was found at the place and in the condition which resulted in his death. It was shown that there was a deadhead coach attached to the rear of this particular train, on which was riding the crew of the coach a conductor and flagman, and they testified that no such occurrence as that testified to by plaintiff's witness occurred on their coach, and that no one came through their coach between Georgianna and Montgomery.

In reference to the plea of ne unques administrator, the facts were as follows: This suit was brought by service of summons and complaint on the 1st day of April. On the 9th day of February, 1903, a petition for letters of administration was filed in the probate court of Washington county, Ala., by the plaintiff. On the same day the probate judge issued letters of administration in the form required by section 57 of the Code, and on the same day wrote out a formal order appointing plaintiff administrator, but did not sign it, nor was the indorsement of filing signed by him. On the 10th day of April, 1903, the unsigned order which was written was substantially reproduced on the minutes as a signed decree being entered on that day on the minutes of the court. The probate judge testified substantially to these facts. The plaintiff introduced the letters of administration. Objection was interposed to the testimony as to when the judgment was entered, and as to when the unsigned order was made a part of the minute, which objection was sustained by the court.

The only charge considered is set out in the opinion of the court. There was verdict and judgment for plaintiff assessing his damages at $16,000, and from that judgment this appeal is prosecuted.

George W. Jones, Pearson, Richardson & Smythe, and J. M. Chilton, for appellant.

E. P. Wilson, Powell & Hamilton, and McAlpine & Robinson, for appellee.

McCLELLAN J.

On a former appeal this court passed upon several of the questions now presented for review. So to these no new consideration will be given. L. & N. R. R. Co. v. Perkins, Adm'r, 144 Ala. 325, 39 So. 305.

Besides counts seeking recovery of damages for, it is averred wanton, willful, or intentional acts resulting in the death of appellee's intestate, there is a count (the first) which, eliminating its formal features, is in the following language: "That on, to wit, the 3d day of January, 1903, the defendant was engaged in operating a railroad as a common carrier in the state of Alabama, and in the county of Butler in said state, and said defendant then and there so negligently conducted said business that by reason of such negligence plaintiff's intestate, who was a passenger on one of defendant's passenger trains, received personal injuries which caused his death." This is, of course, a good count for simple negligence. Upon the conclusion of the testimony the defendant requested the court in writing to give and read to the jury this charge: "(3) There can be no recovery in this case under the first count of the complaint." The court refused it, and this action is assigned as error. Beginning with the Johnston Case, 79 Ala. 436, an announcement repeatedly reaffirmed in subsequent decisions, this court declared the rule that there can be no recovery on a count averring a willful or wanton wrong, where the testimony adduced shows only an act or omission constituting simple negligence. The principle recognized the well-defined distinction between the two actionable wrongs. Negligence, though incapable of translation into satisfactory definition, excludes the idea of intention; and under our decisions wantonness is but descriptive of a condition so consciously leading to harmful results that the party charged may be deemed to have intended such results from his conscious dereliction or affirmative action. A corollary, resulting from the foregoing settled principles, is that on a count in simple negligence there...