Birmingham Railway Light & Power Co. v. Wise , 149 Ala. 492 ( 1906 )

HARALSON, J. —

The demurrer to the first count is sought to be sustained on the ground that the count does not show that the relation of carrier and passenger existed at the time of the grievance complained of. The count as amended, alleges in terms, that “plaintiff and her children were defendant’s passengers and it was the duty of defendant to carry them on said car from Gate City (the initial station) to said Birmingham as aforesaid.” The second count contains the same averment. The circumstances stated in the counts, aside from the positive averment of the relation of carrier and passenger, were sufficient to create that relation. — 5 Am. & Eng. Ency. Law (2d Ed.) 488, 491, and notes; Hutchinson on Carriers, §§ 558, 562.

2. The second count avers, “that defendant’s servant or agent in charge or control of said car, while acting within the line and scope of his authority as such servant or agent, wantonly or intentionally prevented plaintiff with her said baby from hoarding said car as aforesaid, and thereby wantonly or intentionally caused plaintiff to suffer said injuries and damage.” This was a sufficient averment to save the count from the ground of demurrer, that the count does not show that the injury complained of was wantonly or intentionally “inflicted.” — Russell v. Huntsville Railway, Light & Power Co., 137 Ala. 628, 34 South. 855; C. of G. R. Co. v. Foshee, 125 Ala. 226, 27 South. 1006; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 244, 26 South. 349.

3. There was no reveisible error in the ruling allow' ing the seven year old boy, Dixie Wise, to testify. In passing on the competency of a witness of tender years, much must necessarily he left to the discretion of the presiding judge, and this discretion will not be revised unless it clearly appears that it has been improperly exercised. — Wade v. State, 50 Ala. 164; Kelly v. State, 75 Ala. 22, 51 Am. Rep. 422; McGuff v. State, 88 Ala. 147, 7 South. 35, 16 Am. St. Rep. 25.

4. The witness, IT. J. Palmer, testified that when the car stopped at Gate City, there were seven or eight or ten passengers to alight, before Mrs. Wise and her party, consisting of herself and nine children, who were in waiting to get on the car, could get aboard. After her daughter, Mrs. Palmer, and Mrs. Wise’s little son, Alfred, and one or two of the children, got on the cai’, the witness testified, that he saw the conductor in the act of pulling the bell cord, and protested, asking him not to move the car until the rest of the party got on, when he answered that he did not have time, and the car proceeded around the loop, leaving Mrs. Wise and the others of her children, standing there; that he asked the conductor again, to stop and let the mother and her children get on 'the car with the ones that were already on, and he said he did not have time, but- did stop about a third of a mile away, and put the children off, who were on the car. Again he testified, that Mrs. Wise followed the car around the loop, and he asked the conductor to stop and put the children off with their mother, who was following the car, and he said he did not have time, and witness then asked him, to let the mother and her three children get on, and he replied he did not have time, and went on about two blocks and stopped and put the children off.

5. The defendant, after it had introduced its testimony, moved the court to exclude that part of the evidence about what the conductor said or did at the place where the loop comes 'into the main line. It does not appear that the question calling for the evidence was Objected to,’nor was the answer objected to after it was made. The evidence tends to show a wanton disregard of plaintiff’s rights, and a willingness to inflict any consequent injury on her that might follow such disregard' of her rights.

6. • The court in its general instructions, charged among other things: “Now the allegation of the complaint is' that these parties were acting within the line and scope of their employment, if so, and either one or .both of them negligently, intentionally or wantonly as I have described wantonness to you, failed to allow her to board the car,' then you may inflict what is called punitive, exemplary or vindictive damages.”

This instruction, in the alternative, charges simple negligence and wantonness, either one or the . other. This is an averment, that either a negligent, or an intentional or wanton failure to allow plaintiff to board the car, was sufficient to authorize punitive damages. This was error. — L. & N. R. R. Co. v. Duncan, 137 Ala. 454, 34 South. 988; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 521; L. & N. R. R. Co. v. Hurt, 101 Ala. 35, 13 South. 130. Punitive damages are not recoverable for simple negligence, hut the recovery in such case is for 'compensatory damages. —5 Mayfield’s Dig. p. 263, § 4; B. R. L. & P. Co. v. Nolan, 134 Ala. 332, 32 South. 715; A. G. S. R. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St. Rep. 17.

7. We have examined charges requested by defendant and refused, and find no reversible error in their refusal.

For the error above pointed out, the judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.