Sloss-Sheffield Steel & Iron Co. v. Dickinson , 167 Ala. 211 ( 1910 )

ANDERSON, J.

This is an action for assault and battery, and the appellant contends that, inasmuch as it charges a corporate wrong, the defendant was entitled to the general charge, under the Henry Case, 139 Ala. 161, 34 South, 389, and subsequent cases approving same. Whether the rule there laid down would or would not apply to an action of this character is immaterial, for, if it did, there was evidence from which the jury could infer that the whipping of the plaintiff was inflicted under a rule adopted by the defendant corporation and which was in existence at the time of the whipping. The state board promulgated certain rules as to inflicting corporal punishment, and the jury could infer that the defendant was operating its mine under said rules, and authorized and required corporal punishment when the task was checked up short, or when the coal cars contained slate and dirt. The defendant was not, therefore, entitled to the general charge upon the theory advanced in brief. — Daffin v. Zimmerman, 158 Ala. 637, 48 South. 109.

It is insisted that charge 2 should have been given for the defefidant, for the reason that the second count charges cruel and unreasonable punishment. It was a ■question for the jury as to whether or not the punishment was cruel and unreasonable. It was clearly unreasonable, if not given for a proper cause, and there was proof from which the jury could infer that it was cruel.

The first count of the complaint was in Code form, and contained no claim for mental anguish. This court, in the recent case of Powell v. Schimpf, 154 Ala. 665, 44 South. 1044, reaffirmed the case of Irby v. Wilde, 150 Ala. 402, 43 South. 574, and stated in the opinion in manuscript, but which is not reported in full, that compensatory damages could not be recovered in an action for assault and battery unless specially claimed. We now adhere to this rule, and hold that the trial court erred in refusing charge 4 requested by the defendant.

There was no error in refusing charge 6, requested by the defendant. There was proof from which the jury could infer that the defendant’s servants wrongfully caused the whipping, and if they so caused it the defendant would be liable, notwithstanding Hall may have been the deputy warden of the state.

For the error heretofore pointed out, the judgment of the law and equity court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.