Birmingham Railway, Light & Power Co. v. McLeod , 9 Ala. App. 637 ( 1913 )

THOMAS, J. —

The reporter will set out count 1 of the complaint, the overruling by the court of a demurrer to which is here assigned as error by the defendant.

We are of opinion that the demurrer should have been sustained. The count, it will be observed, is predicated, not upon negligence, but upon wantonness or willfulness in inflicting the injury. It avers in the alternative that defendant’s servant in charge of the car, acting within the line and scope of his authority as such, “wantonly or intentionally caused plaintiff to suffer said injuries and damage by -wantonly or intentionally carrying plaintiff a long distance past his desiination.”

In the case of Memphis & Charleston R. R. Co. v. Martin, 117 Ala. 382, 23 South. 237, our Supreme Court, speaking through Coleman, J., say: “The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, without further averment, falls very far short of showing that the injury was intentionally or wantonly inflicted. Unless there was a purpose to inflict the injury, it cannot be said to be intentionally done; and unless an act is done, or omitted to be done, under circumstances known to the person that his conduct is likely to, or probably will, result in injury, and, through reckless indifference to consequence, he consciously and intentionally does a wrongful act, or omits an act, the injury cannot be said to be wantonly inflicted.” These principles have been frequently enunciated by that court. — So. Ry. Co. v. Bunt, 131 Ala. 595, 32 South. 507; L. & N. R. R. Co. v. Mitchell, 134 Ala. 266, 32 South. 735; B. R., L. & P. Co. v. Brown, 150 Ala. 329, 43 South. 342. In other words, malice is the basis for the infliction of punitive damages in the class of actions here under consideration. It is necessarily inferred from either an intentional or wanton infliction of the injury — the law ascribing to wantonness, which is characterized, as seen, by a. reckless indifference to consequences known to probably result, the same degree of culpability as it does to willfulness, where it is intended that the injuries should result; but malice is not necessarily inferred from the mere intentional doing of even a wrongful act. If so, nearly every trespass would form a basis for punitive damages. — Wilkinson v. Searcy, 76 Ala. 181. And while it is true that willfulness or wantonness in inflicting the injuries may be, like negligence, averred in very general terms, without setting out the facts relied on to constitute either (So. Ry. Co. v. Weatherlow, 153 Ala. 175, 44 South. 1019), yet, where a count, predicated on either, undertakes to state the facts, it must state such facts as are sufficient in law to show that the injury was wantonly or intentionally and wrongfully inflicted Va. Car. Chem. Co. v. Mayson, 7 Ala. App. 588, 62 South. 253.)

Here, as will be observed from the quotation before made from the count under consideration, it is averred that the defendant’s servant wantonly or intentionally caused the injury “by wantonly or intentionally carrying plaintiff a long distance past his destination.” This amounts to no more than an averment that the act in carrying plaintiff past his destination was wantonly or intentionally done. — B. R., L. & P. Co. v. Brown, 150 Ala. 331, 43 South. 342. An allegation that an act was wantonly done probably imports that it was wrongfully and maliciously done; but an allegation that an act was intentionally done does not even import that the act was unlawfully or wrongfully done, and much less that it was maliciously done.- L. & N. R. Co. v. Mason, 4 Ala. App. 362, 58 South. 963. The rule is that counts based, as the one here, on alternative averments must be so framed that each alternative presents a good cause of action, else the count is bad in toto, because a charge in the disjunctive is never stronger than the weakest alternative averred.- B. R., L. & P. Co. v. Ely, 62 South. 816; State v. Nix, 165 Ala. 126, 51 South. 754. The alternative averment that the alleged act of defendant in carrying plaintiff past his destination was intentionally done not only fails to show that the act was malicious, but even fails to show that it was wrongful, as seen; nor does any other averment of the count show either, if we omit from consideration, as we must, the disjunctive averment that the act was wantonly done. Leaving out of consideration, of course, for reasons hereinbefore stated, the alternative averment that it was wantonly done, the only averment of the count tending to show it was even wrongful in the following: “That it was and became the duty of defendant to allow plaintiff a reasonable opportunity to alight from said car at his said destination, to wit, Thirty-Second street; but, notwithstanding said duty, defendant carried plaintiff a long distance past said station,” etc. It is not alleged, as seen, that this duty was breached; but, for aught to the contrary appearing in the count, the defendant may have discharged said .duty by stopping the car at the station named a sufficient length of time to allow a reasonable opportunity to alight, and. plaintiff may have neglected to avail himself of the opportunity, or he may have from choice, changing his. mind from its original intention after the car stopped, desired to remain on the car, and did so. In either event the carrying of him past said destination named would not be wrongful, although intentional. — B. R., L. & P. Co. v. McDaniel, 6 Ala. App. 322, 59 South. 334. Pleadings are construed' most strongly against the pleader, and we are of opinion that the allegations of the count are not sufficient to show even a breach of duty. The facts it states are as consistent with a performance as with a breach of the duty alleged. Whether the car stopped at the station named a sufficient length of time to allow a reasonable opportunity to alight, which was the duty alleged, is not shown; but it is merely alleged that, “notwithstanding said duty” (which may or may not have been performed, for aught appearing in the count), defendant intentionally carried plaintiff a long distance past said station (which may have been rightfully or wrongfully done, dependent, as seen, on facts not disclosed in the count). The count should have alleged in effect or substance that, notwithstanding said duty, which was breached, or which defendant failed to perform, defendant wrongfully carried plaintiff a long distance past his station. This followed by the subsequent averments, as found in the count, that the injury was wantonly or intentionally inflicted — if stopping there, without alleging how— would have shown both wrong and malice on the part of defendant in inflicting the injuries complained of. But, under the count as at present framed, plaintiff was entitled to recover if he merely proved the disjunctive that defendant intentionally carried him past his destination, even though the act was neither wrongful nor malicious — even though it was done with plaintiff’s consent.

The demurrers, we think, sufficiently pointed out some of the defects of the count, and should have been sustained. The judgment is therefore reversed.

Reversed and remanded.