Matheny v. Petersen

• Decision Date: 16 April 1964
• Docket Number: 1 Div. 80
• Citation: 163 So.2d 635,276 Ala. 478
• Parties: Cornelius MATHENY, JR. v. Walter E. PETERSEN, Jr.
• Court: Alabama Supreme Court

Page 635

163 So.2d 635

276 Ala. 478

Cornelius MATHENY, JR. v. Walter E. PETERSEN, Jr.

1 Div. 80.

Supreme Court of Alabama.

April 16, 1964.

Collins, Galloway & Murphy, Mobile, for appellant.

Forest A. Christian, Foley and E. G. Rickarby, Fairhope, for appellee.

COLEMAN, Justice.

This is an appeal by defendant from judgment for plaintiff, on verdict of jury, in an action for personal injury and property damage suffered in automobile collision.

The case was tried on three counts, one for negligence causing personal injury, one for negligence causing damage to plaintiff's automobile, and one for wanton injury to plaintiff's person. Defendant filed pleas of general issue and contributory negligence.

Plaintiff's Charge 4.

Defendant asserts that the court erred in giving plaintiff's requested Charge 4 which recites:

'The Court charges the Jury that if the injury sustained by the Plaintiff in this case was such as to aggrevate a previously existing condition which resulted in the loss of function in his hand and arm then you may award damages for said loss of function.'

Defendant correctly points out that Charge 4 wholly omits to require that plaintiff's injury be the proximate result of defendant's negligence. More specifically, the charge is an incorrect statement of law because the charge fails to require that, before plaintiff can recover for his injury, defendant's negligence or wrongful act must be the proximate cause of plaintiff's injury. The charge states: '* * * if the injury (to) * * * plaintiff * * * (aggravated) * * * a previously existing condition which resulted in * * * loss of function in his hand and arm * * * you may award damages for said loss of function'; without more. We do not think the law permits jury to award damages to a plaintiff, and against a defendant, merely because plaintiff receives an injury which aggravates a previously existing condition. To be entitled to recover damages for an injury in an action founded on defendant's negligence or wrongful conduct, as this action is, plaintiff must show that his injury was proximately caused by the negligence or wrongful act of the defendant.

'* * * it may be said that, however negligent a person may have been in some particular respect, he is liable only to those who may have been injured by reason of such negligence, as the proximate cause. * * *' Smith v. Alabama Water Service Co., 225 Ala. 510, 512, 513, 143 So. 893.

See also: Western Ry. of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388.

Plaintiff replies that Charge 4 'was taken from Montgomery & Eufaula Railway Co. v. Mallette, 92 Ala. 209, 9 So. 363.' Careful examination of the report of the Mallette case has not revealed the charge in that case from which plaintiff's Charge 4 in the instant case was taken. It appears that plaintiff may be referring to parts 7, 8, and 9 of the general charge, given in the Mallette case, which was held to be 'unexceptionable' in this connection. Part 7 states, in effect, that if the injury by the railroad aggravated the prior wound, the result is the same as if there had been no prior wound. Part 8 is to like effect. Part 9 is to effect that if the stiffening of plaintiff's arm was caused by the prior injury and not by defendant, this would not defeat plaintiff's right to recover "* * * any other damages, if any proven, if the injury was the result of negligence on the part of defendant.' * * *' (Emphasis supplied.) Part 9 would be more nearly accurate if it were made to read: 'proximate result of negligence on the part of defendant.'

In any event, it does not appear to us that plaintiff's Charge 4 was approved by this court in the Mallette case, and we are of opinion that giving Charge 4 in the case at bar constituted reversible error.

Plaintiff's Charge 8.

Defendant asserts that the court erred in giving plaintiff's requested Charge 8 which recites:

'Gentlemen on the Jury, if, from the evidence in this case, you find that plaintiff has been permanently injured through the fault of the defendant, as is averred in the complaint, or some one count thereof, and that defendant has failed to prove any of its pleas, then you should give plaintiff substantial damages, and in assessing these damages you should treat the plaintiff with fairness.'

Defendant insists that Charge 8 is bad and should have been refused because:

First, it is misleading because it allows the jury to base its finding on 'the complaint, or some one court thereof,' when there were nine counts filed by plaintiff, but trial was had on three counts only. Certainly the jury should not consider counts to which demurrer has been sustained, but the court's oral charge to the jury commences:

'GENTLEMEN OF THE JURY: This case comes to you on a complaint filed by Mr. Peterson against Mr. Mathency, which consists of three Counts--Counts SEVEN, EIGHT and NINE. You will consider only those Counts. You may wonder why Counts SEVEN, EIGHT and NINE. The original complaint consisted of six counts, and that has been amended by filing Counts SEVEN, EIGHT and NINE.'

The jury were thus instructed to consider only the three counts on which the case was tried. We are of opinion that defendant's first criticism of Charge 8 is not well taken.

Second, defendant says that Charge 8 uses the word, 'find,' instead of the words, 'reasonably satisfied.' The charge might well have been refused because of failure to use the words, 'reasonably satisfied,' Alabama City, Gadsden & A. Ry. Co. v. Bessiere, 190 Ala. 59, 66 So. 805, but this court has held that neither the giving nor the refusal of such a charge will, as a rule, work a reversal. Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731; Mobile City Lines, Inc. v. Proctor, supra. Defendant's second criticism of Charge 8 does not require reversal.

Third, defendant says:

'This charge further requires that Defendant prove all of his pleas. Again the correct degree of conviction necessary for the Jury is for them to be 'reasonably satisfied' and then it is basic law that only after the Jury has been 'reasonably satisfied' from the evidence that the Plaintiff is entitled to recover does it become incumbent upon the Defendant to prove his plea of not guilty which plea was in issue in this case. This charge is most misleading and confusing in this manner in that it appears that the Defendant must prove his plea of not guilty or the general issue while the Jury only 'finds' that the Plainftiff was injured through the fault of the Defendant which is not necessarily the proximate cause of the injury. * * *'

We agree that the charge is misleading. The charge states that 'if, from the evidence * * * you find that plaintiff has been * * * injured through the fault of the defendant * * * and that defendant has failed to prove any of its pleas' you should give plaintiff substantial damages. Certainly, defendant is not primarily, if ever, bound to prove the general issue, which was one of his pleas in the instant case, yet the charge may be understood to mean that if defendant has failed to prove any one of his pleas, plaintiff should recover.

The charge is subject to the criticism that it fails to state correctly the burden on defendant as to affirmative pleas. As to those pleas, the charge should state that defendant is required to prove them to the reasonable satisfaction of the jury.

Because Charge 8 is misleading it may be refused without error. Sullivan v. State, 117 Ala. 214, 23 So. 678; Rolston v. Langdon, 26 Ala. 660.

Fourth, defendant argues:

'Charge 8 also requires that if the other elements thereof are met that the Jury 'give Plaintiff substantial damages' the word 'substantial' as used in this charge can have only one logical meaning among the various meanings as given in Webster's Dictionary and that one meaning as here appropriate is 'large'. In requesting the Jury to give substantial damages the Court has invaded the province of the Jury and determined that the damages were large. * * *'

In Black's Law Dictionary, Fourth Edition, West Publishing Company, 1951, page 469, the term, 'Substantial damages,' is denfined as follows:

'Substantial damages

'A sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right. Wharton. Considerable in amount and intended as a real compensation for a real injury.'

'Compensatory damages,' by necessary implication, intends a reimbursement for loss suffered by reason of injury to person or property. Pullman Company v. Lutz, 154 Ala. 517, 45 So. 675, 14 L.R.A., N.S., 907. In the instant case, plaintiff, on proof of the negligence counts, was entitled to compensatory damages.

Under the wanton count, plaintiff would be entitled to punitive damages. This court has said:

'Punitive damages, being apart from compensation, are not recoverable as a matter of right. Their imposition is discretionary with the jury. Louisville & Nashville Railroad Co. v. Bizzell, 131 Ala. 429, 30 South. 777; 12 Am. & Eng. Ency. p. 51, and cases cited in notes to the text. And this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion; and, after instructing the jury in respect to the elements which must be found to exist to warrant the assessment of such damages, in submitting to the jury the question of imposing punitive damages, the court should always safeguard the submission with such instructions as that the jury will not be misguided, but will be held mindful, in fixing such damages, that they should act with due regard to the enormity or not of the wrong, and to the necessity of preventing similar wrongs, and that, if such damages are imposed, they should be in such an amount (much or little) as, under all the circumstances attending the commission of the wrong, the exigencies of the case, in the sound judgment and discretion of the jury, may demand,...