Taxicab Co. v. Grant , 3 Ala. App. 393 ( 1911 )

WALKEB, P. J.

This is an action to recover damages for the alleged negligent breach by the defendant of the duty assumed by it by a contract to carry the plaintiff, who was engaged in the real estate business, and four ladies, who were his prospective customers, from Birmingham to Shades Mountain and to return them to Birmingham in an automobile, the claim being that the automobile in which the party was sent out broke down, owing to the negligence of the defendant or its employes, and that the party was not returned to Birmingham by the defendant, and was caused to remain out on Shades Mountain for a long time and into the night, and finally to walk into Birmingham; the complaint alleging that. “plaintiff was put to great trouble, inconvenience, and expense in and about getting himself and said passengers'into said Birmingham, and was greatly bothered, and suffered great mental and physical pain in and about remaining at said place.”

By motions to strike parts of the complaint embraced in the above quotation and by charges requested, the defendant raised the question of the right of the plaintiff to have his bother or mental worry considered as a basis for recoverable damages. We find no error in the rulings of the trial court in that connection. Where, besides the inconvenience and physical discomfort resulting from the breach of duty complained of, the plaintiff also was subjected to vexation, worry, or distress of mind as natural, proximate and reasonably to be expected consequences of such wrongful act, these last-mentioned results may constitute a support for an award of additional compensatory damages.—East Tenn. Va. & Ga. R. Co. v. Lockhart, 79 Ala. 315; Louisville & Nashville R. R. Co. v. Quick, 15 Ala. 553, 28 South. 14; Alabama City, G. & A. Co. v. Brady, 160 Ala. 615, 49 South. 351.

It is enough to say of the defendant’s pleas numbered 3, 4, 5, 6 and 7 that each of them fails to aver either that the plaintiff was at fault in leaving the broken down car before another car came, or that defendant exercised proper care or diligence in sending relief after it had notice of the trouble. There was no error in sustaining the demurrers to those pleas.

The avements of pleas 8 and 10 do not show that any negligence of the plaintiff proximately contributed to the results which the complaint attributed to the breach of duty on the part of the defendant, and plea 9 affirmatively shows that such results were attributable to the act of the defendant. These considerations suffice to support the conclusion that there was no error in sustaining the demurrers to those pleas.

If plea 11 could be regarded as setting up any matter of defense, it was matter available under the plea of the general issue, and the demurrer to it was properly sustained on that ground.

According to the plaintiff’s -pleading and proof, part of the duty assumed by the defendant was to return plaintiff’s party to Birmingham in an automobile. If, in consequence of the breakdown of the car in which the party was sent out, this duty could be performed only by defendant’s sending another car for them, it cannot be said that defendant was under no obligation to send .out another car. In view of the evidence tending to show the existence of such duty and the negligent failure to perform it, it was not error to refuse charge 32 requested by the defendant.

If, as there was evidence tending to show, the plaintiff did not abandon the broken-down automobile and incur the trouble and inconveniences of walking back to Birmingham until after the defendant had failed, within a reasonable time after being = informed of the casualty to that machine, to perform the duty of returning the party to Birmingham in an automobile, that conduct of the plaintiff could not be treated as a waiver by him of the performance by the defendant of the duty assumed by it in that regard. This consideration discloses the incorrectness of charges 21 and 22, refused to the defendant, without determining whether they were otherwise free from fault.

The foregoing disposes of the assignments of error sought to be sustained by the argument of the counsel for the appellant.

Affirmed.