McDougal v. Alabama Great Southern R. Co.

• Decision Date: 18 October 1923
• Docket Number: 6 Div. 974.
• Parties: MCDOUGAL v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

97 So. 730

210 Ala. 207

MCDOUGAL v. ALABAMA GREAT SOUTHERN R. CO.

6 Div. 974.

Supreme Court of Alabama

October 18, 1923

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action for damages by J. P. McDougal against the Alabama Great Southern Railroad Company. From an order or judgment granting defendant's motion for a new trial, plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p 450, § 6. Affirmed.

Goodwyn & Ross, of Bessemer, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

ANDERSON C.J.

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 by separate counts. Sou. R. R. v McIntyre, 152 Ala. 223, 44 So. 624; Sloss Co. v. Mitchell, 167 Ala. 226, 52 So. 69; Highland R. R. v. Dusenberry, 94 Ala. 413, 10 So. 274.

Count 4 of the present complaint charges that the defendant's conductor "wrongfully caused the plaintiff to be carried by and beyond his said destination a long ways, to wit, 25 miles to the city of Bessemer, Jefferson county, Ala., and in a rough and angry manner grabbed hold of plaintiff and shoved him violently back upon and against the seat in said train when the plaintiff had arisen in an effort to have the train stopped at the plaintiff's said destination." The first part charges an actionable wrong in carrying the plaintiff beyond his destination, whether done negligently or intentionally, and from aught appearing it may have been unintentional, and the defendant's conductor was guilty of only simple negligence. The last part charges the conductor with an assault and battery on the plaintiff-a wilful or intentional injury-and is not, therefore, merely descriptive of the first charge, or simply a circumstance of aggravation going to the enhancement of damages. The count not only states two separate and distinct causes of action but they are of such a character that a good defense to one would not necessarily be a defense to the other. If the one charge was intended as merely descriptive of the other, or as an aggravation of the act in carrying the plaintiff beyond his destination, the intent must be ascertained from inference, rather than the literal expressions of the pleader, and pleading must...