Steward v. Gold Medal Shows

• Decision Date: 03 June 1943
• Docket Number: 6 Div. 83.
• Parties: STEWARD v. GOLD MEDAL SHOWS et al.
• Court: Alabama Supreme Court

14 So.2d 549

244 Ala. 583

STEWARD v. GOLD MEDAL SHOWS et al.

6 Div. 83.

Supreme Court of Alabama

June 3, 1943

Rehearing Denied June 30, 1943.

Appeal from Circuit Court, Tuscaloosa County; W. C. Warren Judge.

The following charge was given at the request of the defendants "18. I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence that the plaintiff is entitled to recover, the plaintiff cannot recover in this case any damages other than the amount that you are reasonably satisfied from the evidence the services of Silas Steward, Jr., were reasonably worth during the time that he was away from Tuscaloosa, Alabama, and away from the care custody and control of plaintiff."

Charges 19, 20 and 21 are to like effect.

E W. Skidmore, of Tuscaloosa, for appellant.

Jones, Dominick & McEachin, of Tuscaloosa, for appellees.

THOMAS, Justice.

The suit is by a mother for damages for enticing and carrying away her minor son.

It is alleged in the complaint that the plaintiff is the mother of a boy of the age of fourteen years; that she is entitled to his care, custody, control, company and earnings, and has been put to great concern, worry, fear, humiliation, and vexation as the proximate loss of her minor child,-all to her damage.

Plaintiff's contention is that on or about October 4, 1941, the defendant finishing a week's engagement in Tuscaloosa, left for Luverne and at the time of leaving Tuscaloosa, he or some of his agents, servants or employees, without the consent of plaintiff, enticed or otherwise procured appellant's minor son to accompany the show to Luverne. It is further averred in her pleading that she did not know where the son was until he later returned and that his unexplained absence caused her great concern, worry, fear, humiliation and vexation as a direct and proximate cause of the loss of said minor child; and that during his absence she was deprived of the care, custody, control, company and earnings of her minor son, all to her damage, for which she sues.

A preliminary matter was presented by defendant's plea to the effect that a similar suit between the parties set up the same subject matter and a judgment in such pending suit in another jurisdiction would be a bar to the above-styled cause. Ford v. Bowden, 243 Ala. 334, 9 So.2d 906.

The judgment entry on the plea was to the effect that the court "finds that no former suit was pending at the time of the filing of this suit."

Demurrers to the amended complaint were overruled and the defendant pleaded in short by consent, the general issue with leave to offer in evidence legal proof of any matter in defense which could be well pleaded.

Defendant's defense was that neither he nor any of his agents, servants or employees had anything to do with said minor leaving Tuscaloosa; that they did not know him; had not given him employment with the show; and that he had had nothing whatever to do with him.

At the beginning of the trial the court granted a motion for defendant, striking from the complaint all allegations of damages based on plaintiff's concern, worry, fear, humiliation and vexation, by reason of the absence of the child. The judgment entry shows that said motion was considered by the court and "the court is of the opinion that the same is well taken and should be and is hereby granted." The plaintiff duly excepted to said action of the court. The plaintiff with leave of the court amended her complaint by striking "Gold Medal Shows, whose name is otherwise unknown," as party defendant. Issue being joined upon defendant's plea of the general issue in short by consent, etc., there was a verdict for the defendant.

The record proper further shows a motion duly made for a new trial and among other grounds it was stated that the court erred in granting defendant's motion to strike from plaintiff's complaint all reference to her claim for damages for mental anguish, worry, anxiety, and for upsetting her nervous system, etc. Said motion being called to the attention of the court on March 28th was set down for hearing, and on that day was continued to March 31st, when the motion was considered and the order and judgment of the court was that plaintiff's motion to set aside the verdict of the jury theretofore rendered in the cause against the plaintiff and the judgment thereon in favor of defendant and to grant the plaintiff a new trial was overruled. The plaintiff then and there in open court duly and legally excepted to the action of the court in overruling said motion. There was no other evidence offered on the motion for a new trial than was within the breast of the court.

The foregoing appears in the record proper and the motion and ruling thereon likewise appear as a part of the bill of exceptions duly presented to and signed by the presiding judge with certificate of service of copy thereof on defendant's attorneys of record.

The assignments of error contain many alleged errors presented for review, the first of which are that the court erred in granting defendant's motion to strike from plaintiff's complaint counts one and two, as follows: "Plaintiff has been put to great concern, worry, fear, harm and vexation," etc., and "the court erred in overruling motion for a new trial."

The important question for consideration is the granting of the motion to strike the matter indicated from the complaint and the denial of plaintiff's right of recovery of damages for mental suffering, anxiety, etc., in an action by a parent having the possession and care of the minor child; for enticing away said minor child.

Several decisions of this court are for consideration by way of analogy. In Shannon v. Sims, 146 Ala. 673, 40 So. 574, it was held that mental suffering is an element of damages in an action for false imprisonment. In Walling v. Fields, 209 Ala. 389, 96 So. 471, an action for false imprisonment and malicious prosecution, it was held the plaintiff may prove at the time of his arrest he was married and had a family; was taken from them by the arrest and imprisonment; that such action deprived him of the society of his wife and children while in jail; and that circumstances and facts surrounding the plaintiff under arrest and in prison can be given whereupon the jury may infer the circumstances, but plaintiff cannot testify directly that he suffered mental pain.

In Standard Oil Co. v. Humphries, 209 Ala. 493, 96 So. 629, 631, Mr. Justice Sayre, writing for the court, declared that damages for mental suffering when alleged are recoverable; that plaintiff should not have been allowed to state that he suffered mental anguish, that he was nervous or frightened; that such inference is for the jury, "Upon the whole evidence in the particular case, to say whether plaintiff suffered mental pain, including, as we think, nervousness and fright." Michie's Digest, § 45, p. 639.

In Florence Hotel Co. v. Bumpus, 194 Ala. 69, 69 So. 566, Ann.Cas.1918E, 252, in an action by a guest at a hotel, under a complaint showing wrongful invasion of plaintiff's room, violation of his right of privacy and humiliation suffered on account of removal of his effects therefrom, it was held that damages may be awarded for humiliation and indignation. The case of Louisville & N. R. Co. v. Hine, 121 Ala. 234, 25 So. 857, cited with approval, is to the effect that humiliation and indignation if suffered by him (plaintiff) are also elements of actual damage arising from a sense of injury and outraged rights engendered by ejection alone from his room, without regard to the manner in which it was effected and though done through mistake.

In Parker v. Newman, 200 Ala. 103, 75 So. 479, many general authorities are cited to the effect that damages were recoverable for alienation of affection.

In Long v. Booe, 106 Ala. 570, 571, 17 So. 716, the action was likewise for the alienation of the wife's affection, and it was held that where a claim for damages is for the loss of a wife's services, the term "services" does not necessarily or automatically involve a loss measurable by pecuniary standards of value, such as obtain where the master is deprived of the labor of his servant or the father is deprived of the "help of his child"; but the term implies whatever he had, assistance, comfort and society, which the wife would be expected to render or bestow upon her husband under the circumstances to surround them in the condition and station of life that may be presented.

In Sloss-Sheffield S. & I. Co. v. Devaney, 7 Ala.App. 457, 60 So. 990, 991, in a case for malicious prosecution, Judge Pelham cites with approval Stewart v. Blair, 171 Ala. 147, 54 So. 506, Ann.Cas.1913A, 925, to the effect that it was proper to permit the plaintiff to show that he was a married man, had a family of children and a daughter 18 years old, "for the purpose of allowing the jury to properly estimate the plaintiff's wounded pride and feelings," as an element of damage which was specifically claimed in the complaint.

In Alabama Fuel & Iron Co. v. Baladoni, 15 Ala.App. 316, 73 So. 205, it was held:

"Damages are recoverable for physical injury directly caused by fright which was proximately caused by defendant's negligence. * * *

"Damages: Fright: Public Policy.-Where it clearly appears that an injury proximately resulted from fright wrongfully caused by an employee of defendant, plaintiff will not be denied recovery on the ground of expediency or public policy because of the danger of opening the door to fictitious litigation easily simulated."

This was on authority of Spearman v. McCrary, 4 Ala.App 473, 58 So. 927, and Ex parte Spearman, 177 Ala. 672, 58 So. 1038. See, also, cases from this court noted in 7 Ala.Digest, Damages, p. 411, + 52,...