North Alabama Traction Co. v. Daniel , 158 Ala. 414 ( 1908 )

ANDEBSON, J.

The gravamen of the complaint was the negligent failure of the defendant to transport and deliver the plaintiff, a passenger, at the place of his destination, by carrying him beyond his home or by negligently causing him to debark from the car at the barn upon the return trip. The facts set out in the complaint did not constitute separate and distinct causes of action, but were mere matter’s of aggravation connected with the failure to deliver the plaintiff at his destination. If the complaint-is bad, the defect consists in prolixity, and it was not subject to the demurrer interposed.

While the complaint authorizes punitive damages, and the evidence may have justified the assessment of such damages, we are constrained to hold that under the evidence the verdict, was excessive, and the trial court should have granted a new trial. It is true the plaintiff had .to walk from the barn home, and that he had been sick and was made nervous; but he suffered no ill effects of a .serious or permanent character. Therefore the damages awarded were almost entirely due to the alleged jeers and insults of the defendant’s servants. It may be that their conduct was unpardonable, and that the defendant should be punished for having such servants; but Ave do not think that this plaintiff was in a imsition to feel the same amount of chagrin over Avhat Avas said and done as the ordinary passenger, Avho had comported himself in a proper, and dignified manner. He admitted that he had been in the habit of “guying” this motorman on former trips, and may be what Avas said and done on this occasion Avas but a retaliation incited by the.plaintiff’s previous conduct. We do not mean to justify the conduct of these servants, even if intended as a joke, and brought on by the plaintiff’s OAvn conduct; yet Ave think, under the circumstances, that $1,750 Avas too much for the indignities complained of by the plaintiff. Our conclusion finds support in the cases of Birmingham R. R. v. Ward, 124 Ala. 409, 27 South. 471, and Bessemer Land Co. v. Jenkins, 111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26.

It is insisted by counsel for appellee tliat the bill of exceptions does not contain all of the evidence, because of tlie omission of certain interrogatories to defendant's witnesses. It is sufficient to say that it contains all of the evidence of the plaintiff, which fails to support the verdict; hut we think it contains all the evidence, notwithstanding the omission of some of the interrogatories.

While the record shows tlmt the term of court at which this case was tried, was organized by Hon. I). W. Speake, the regular judge, it siifficiently appears' that Hon. A. H. Alston, supernumerary judge, presided at the trial and signed tin1 hill of exceptions; and in the absence of anything to the contrary we will lire1,sume that be was lawfully and regularly bolding the court, at the time of the trial of this cause, in the place of the regular judge.

The judgment of tin1 circuit court is reversed, and the cause is remanded.

Boversed and remanded.

Trsox, (\ J., and Dowiiebb and MoObebban, JJ., concur.