Opinion
6 Div. 968.
August 10, 1943. Rehearing Denied October 5, 1943.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Action by R.O. Bailey against the Birmingham Electric Company for damages allegedly caused by defendant's servant in ejecting plaintiff from one of defendant's street cars with more force than was necessary. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Birmingham Electric Co. v. Bailey, 244 Ala. 671, 15 So.2d 469.
The complaint upon which the case was tried is as follows:
"Count Two: Plaintiff claims of the defendant $5000.00, damages, for that heretofore on, to-wit, May 2, 1941, the defendant was engaged in the operation of electric street railway cars in Jefferson County, Alabama, for the carriage of passengers for a reward, and the plaintiff says that on said date, about eleven P.M., in the nighttime, he boarded one of the defendant's said South Bessemer street cars at 5th Avenue and 19th Street in the City of Bessemer, Alabama, which was a regular station or stopping place on said line, to ride upon said car as a passenger to East Bessemer Station, a regular station or stopping place upon said line, and that while in route to his said destination he offered the conductor, an agent or servant of the defendant, who was then and there in charge of the operation of said car, whose name to the plaintiff is unknown, while acting within the line and scope of his employment, the money in lawful currency of the United States of America from which to deduct the plaintiff's fare, that said conductor refused to accept said money and to deduct the plaintiff's fare therefrom and ordered the plaintiff off said street car; that he refused to get off said street car at said place in the nighttime and the plaintiff says that he was a very small, weak man and in delicate health at said time and place. And the plaintiff says that it then and there became the duty of said motorman and conductor, if they ejected him from said street car, to use no more force than reasonably necessary to eject him therefrom, and the plaintiff says that said motorman of said car, acting as aforesaid, while said car was standing still at Dartmouth Avenue and 22nd Street, in the City of Bessemer, Alabama, with the door open, grabbed plaintiff around his arms and shoulders and shoved him through said open door of said street car and down its steps, and onto the pavement; that plaintiff fell violently to said pavement from said street car; that said agent or servant, then and there acting as aforesaid used more force than reasonably necessary to eject plaintiff from said street car, and as a proximate result thereof the plaintiff suffered the following injuries and damages, to-wit: Plaintiff was caused to suffer great physical pain and mental anguish and made stiff and sore about his body and limbs, and his body and limbs were bruised, contused, wrenched, and sprained, and one of the bones in his right hand was broken and caused to be placed in a cast for a long time, and the plaintiff was caused to spend money for doctor's services and medicine and materials used in an effort to heal and cure his said injuries, and the plaintiff was greatly shocked, embarrassed, humiliated, frightened and chagrined, and caused to walk a long distance, to-wit, one mile, to his destination, all to his damage aforesaid. And the plaintiff claims punitive damages. And plaintiff says that all his said injuries and damages were proximately caused by the wrongful conduct of the defendant's said motorman or conductor, whose names to the plaintiff are unknown, then and there in charge of the operation and control of said street car and while acting within the line and scope of their employment with the defendant."
The verdict is for the sum of $750.
Huey, Welch Stone, of Bessemer, for appellant.
Separate and distinct facts involving separate and distinct duties cannot be joined in one and the same count. Sudduth v. Central of Ga. R. Co., 197 Ala. 393, 73 So. 28; McDougal v. Alabama G.S.R. Co., 210 Ala. 207, 97 So. 730; Peck v. Henderson, 22 Ala. App. 541, 118 So. 258; Id., 218 Ala. 233, 118 So. 262; Richardson v. Vaughn, 208 Ala. 442, 94 So. 514; Worthington v. Davis, 208 Ala. 600, 94 So. 806; Gilliland v. Harris, 25 Ala. App. 549, 150 So. 184; Tennessee, A. G.R. Co. v. Cavin, 16 Ala. App. 242, 77 So. 80; Highland Ave. B.R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Birmingham R., L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Louisville N.R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Louisville N.R. Co. v. Rogers, 242 Ala. 448, 6 So.2d 874. A cause of action for wrongful ejection from a street car, which is based upon a breach of duty arising out of the relationship of passenger and carrier cannot be joined in one and the same count with a cause of action which does not rest upon the relationship of passenger and carrier, but for a breach of duty imposed by law on the carrier, in legally ejecting one not a passenger, that it shall not do so in an improper manner. Authorities, supra; Birmingham E. Co. v. Maze, 231 Ala. 539, 166 So. 50; Broyles v. Central of Ga. R. Co., 166 Ala. 616, 52 So. 81, 139 Am.St.Rep. 50; Louisville N.R. Co. v. Johnson, 92 Ala. 204, 9 So. 269, 25 Am.St.Rep. 35; Birmingham R., L. P. Co. v. Glenn, 179 Ala. 263, 60 So. 111; Louisville N.R. Co. v. Robinson, 213 Ala. 522, 105 So. 874; Birmingham R., L. P. Co. v. Smith, 14 Ala. App. 264, 69 So. 910; Louisville N.R. Co. v. Laney, 14 Ala. App. 287, 69 So. 993. The duty of a carrier to furnish change does not extend to large sums of money. It is unquestionably the right of a carrier to establish by rule a reasonable limit upon the mount of change it will furnish. 10 Am.Jur. § 1176, page 131; 13 C.J.S. Carriers, § 593, page 1150; 10 C.J. § 1103, page 683. Where the verdict of a jury is so contrary to the evidence as to indicate bias or prejudice, or is wrong and unjust, it becomes the duty of the trial court to grant a motion for a new trial and it constitutes reversible error not to do so. Southern Ry. Co. v. Morgan, 171 Ala. 294, 54 So. 626; Metropolitan L. Ins. Co. v. Hyche, 214 Ala. 447, 108 So. 40; Carraway v. Graham, 218 Ala. 453, 118 So. 807. Where the assessment of punitive damages is manifestly unjust the court in the exercise of a wise and just discretion should award a new trial. Mobile M.R. Co. v. Ashcraft, 48 Ala. 15; Alabama G.S.R. Co. v. Randle, 215 Ala. 535, 112 So. 112. Punitive damages are allowed only where there has been malice, fraud, oppression, gross negligence or where the wrong was committed in a rude, aggravating or insulting manner, but mere recklessness alone is insufficient to warrant such damages. Bowles v. Lowery, 5 Ala. App. 555, 59 So. 696; Snedecor v. Pope, 143 Ala. 275, 39 So. 318; Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93. Though amount of punitive damages is within sound discretion of jury, such discretion is not unbridled or arbitrary. Southern Express Co. v. Malone, 16 Ala. App. 414, 78 So. 408; Id., 201 Ala. 700, 78 So. 990; Askin M. Co. v. King, 22 Ala. App. 452, 116 So. 804.
Ross, Ross Ross, of Bessemer, for appellee.
The gravamen of count 2 was the use by appellant's agent of more force than reasonably necessary to eject appellee. Further averment as to other things proximately caused thereby were mere matters of inducement or aggravation, and did not render the count demurrable as seeking to recover both for wrongful ejection and improper exercise of appellant's right to eject him. Birmingham R.L. P. Co. v. Yielding, 155 Ala. 359, 46 So. 747. Though carrier has lawful right to eject passenger, it is answerable in damages for any unnecessary force or violence inflicted upon him by its agents, acting within scope of their authority. Birmingham R.L. P. Co. v. Yielding, supra. In passenger's action for assault and battery and trespass on person by agent in ejecting him, assessment of damages was for jury, considering any mitigating circumstances of nature justifying nominal damages only. Bates v. Birmingham R., L. P. Co., 203 Ala. 54, 82 So. 14. Actual damages prayed in complaint included damages for wounded feelings and mental suffering. McGhee Fink v. Cashin, Ala.Sup., 40 So. 63. Carrier may make and enforce reasonable rules and regulations, but is responsible for unjust application of a reasonable rule or for enforcing it with undue severity. Birmingham R., L. P. Co. v. McDonough, 153 Ala. 122, 44 So. 960, 13 L.R.A., N.S., 445, 127 Am.St.Rep. 18; Jones v. Louisville N.E.R. Co., 109 Miss. 655, 68 So. 924, Ann.Cas. 1918D, 180.
Recovery in the case was rested upon count two of the complaint, the only count submitted to the jury.
The gravamen of this count is not the wrongful ejection of the plaintiff, but that it was made so by the use of unnecessary force. Stripped of its verbosity, the count charged the ejection of the plaintiff from the appellant's car by the use of excessive force applied by the motorman while acting within the scope of duty and proximately resulting in the catalogued injuries to the plaintiff. The count charged an actionable wrong. Birmingham Ry. Light Power Co. v. Yielding, 155 Ala. 359, 366, 46 So. 747; 10 Am.Jur., Secs. 1585-1587, pp. 336-338
The argument is stressed that the count was demurrable in containing duplicitous averments as to the quo modo of the wrong complained of. It is asserted that it contains averments of an ejection per se wrongful and at the same time a rightful ejection made wrongful by the use of unnecessary violence, thereby embracing in one count two separate actions. But we do not think the allegations of the count can be so construed.
The complaint makes no contention that plaintiff, as a passenger, was wrongfully ejected from the car. Indeed, it seems to concede the right and authority of the agents of appellant to eject plaintiff therefrom, by the allegation that, upon refusal of the plaintiff to leave the car, "it then and there became the duty of said motorman and conductor, if they ejected him from said street car, to use no more force than necessary to eject him therefrom." Then follows the gravamen of his complaint, that said motorman in shoving him off the car "used more force than necessary to eject plaintiff from said street car, and as a proximate result thereof the plaintiff suffered the following injuries and damages," etc.
Clearly, the count is grounded upon this alleged use of unnecessary force in exercising the right of expulsion, which of course is actionable. Louisville N.R. Co. v. Johnson, 92 Ala. 204, 9 So. 269, 25 Am.St.Rep. 35; Birmingham Electric Co. v. Maze, 231 Ala. 539, 542, 166 So. 50; 13 C.J.S., Carriers, § 824a, p. 1637; 10 Am.Jur., supra.
It is our conclusion — and we so hold — that Count 2 was not subject to the argued demurrers. The other averments, such as that plaintiff boarded the car to ride thereon as a passenger and that the conductor refused to accept the bill tendered for his fare, etc., were but descriptive of the circumstances surrounding the expulsion of the plaintiff from the car. The last clause — sentence — of the count might well have been omitted, but in our opinion these averments in no way alter the basis of the action as is so clearly thereinabove counted upon, viz., the application of excessive force in accomplishing the ejection of the plaintiff.
It is next argued that the defendant was entitled to the general affirmative charge.
The rule here appertaining of course is that, where the evidence is conflictory or conflicting inferences may reasonably be drawn therefrom or the evidence contains conflicting tendencies, the general affirmative charge is improper. 18 Ala. Dig., Trial, 142, 143; Harden, Inc., v. Harden, 29 Ala. App. 411, 197 So. 94; Pizitz Dry Goods Co. v. Waldrop, 237 Ala. 208, 186 So. 151.
The only justification for a directed verdict is when the testimony in the case will support no other, and if there is a scintilla of evidence or any reasonable inference therefrom adverse to the party requesting it, the same should be refused. 18 Ala. Dig., Trial, 142, 143; Sloss-Sheffield Steel Iron Co. v. Willingham, 29 Ala. App. 569, 199 So. 15.
Following is a brief summary of the salient facts: The plaintiff — admittedly having drunk two bottles of beer — boarded defendant's street car at about 11 P.M., two miles from his home, for the purpose of riding home. Company rules (the reasonableness vel non of which it is not required to determine) forbade the employees to accept, for changing, a larger bill than $5.00, from passengers in paying their fares. Plaintiff tendered for his fare a larger bill than this amount and the conductor requested a smaller sum of money, which plaintiff did not — or could not — produce. Thereupon, the car was stopped about eight blocks from his home and, after some discussion, the plaintiff refused to leave the car. At this juncture (says the plaintiff), the motorman "wheeled him around" by his shoulders and shoved him through an open door of the car, down the steps, to the street. The plaintiff further testified that when this occurred he lost his balance, his foot missed the car steps and he fell on his hip and hands, and suffered physical injuries, mental pain, wounded feelings, embarrassment, etc.
This recitation of the facts, in light of the well known rule of construction hereinabove, suffices to demonstrate the soundness of the trial court's refusal to direct a verdict for the defendant. We cannot accord with able counsel that, under Count 2, it was incumbent upon plaintiff to establish from the evidence the relation of carrier and passenger and consequent damage from a wrongful expulsion of the plaintiff — as a passenger — by the conductor. As above indicated, no such case is made by the allegations of the count.
The proposition is also advanced that the evidence presented no issue of punitive damages and that error prevailed in refusing to instruct the jury accordingly, as requested by the defendant.
If the alleged conduct of the defendant was vexatious as well as wrongful, punitive damages may be recovered. Hays v. Anderson, 57 Ala. 374. Where the tortious act was wanton or malicious or attended with circumstances of aggravation (Sparks v. McCrary, 156 Ala. 382, 389, 47 So. 332, 22 L.R.A., N.S., 1224), or if done willfully, or was the result of such reckless indifference to the rights of plaintiff as is equivalent to an intentional violation of them (Alabama Power Co. v. Dunlap, 240 Ala. 568, 572, 200 So. 617) vindictive or exemplary — that is, punitive — damages are recoverable. Wilkinson v. Searcy, 76 Ala. 176; Birmingham Waterworks Co. v. Wilson, 2 Ala. App. 581, 56 So. 760; Bowles v. Lowery, 5 Ala. App. 555, 59 So. 696; Snedecor v. Pope, 143 Ala. 275, 39 So. 318; 7 Ala. Dig., Damages, 89(1); 25 C.J.S., Damages, § 123, p. 720; 10 Am.Jur., Sec. 1683, p. 419.
Giving due consideration to all of the circumstances attending the plaintiff's ejection from the car as testified to by him, the fact that he was noticeably drinking (Johnson v. Louisville N.R. Co., 104 Ala. 241, 246, 16 So. 75, 53 Am.St.Rep. 39; American jurisprudence, Section 1586, page 337), was suddenly "wheeled around" and frocibly shoved out of the open door to the pavement, and at night, all to our minds clearly made it a jury question as to whether or not the motorman acted with such recklessness or wantonness in regard to the plaintiff as to meet the test of the authoriies. The issue of punitive damages was, in our view, correctly submitted to the jury for consideration.
The insistence is made that this court should overturn the action of the trial court in denying a new trial, because (1) the evidence was preponderantly against the verdict and (2) the verdict was excessive.
It is axiomatic that upon review all favorable intendments must be accorded the lower court's ruling on the proposition, which ruling will not be disturbed unless the evidence so decidedly preponderates against the verdict returned as to make it appear manifestly wrong and unjust. 2 Ala. Dig., Appeal and Error, 1004(3).
When the evidence is tested by this well recognized principle, we can find no warrant for interference with the lower court's action in overruling the motion for new trial. The learned trial judge — always judiciously impartial to the litigants at bar — who saw the witnesses and heard them testify, concluded in favor of the verdict and we perceive nothing to control a contrary view.
As to challenging the excessiveness of the damages awarded, there is no set rule to govern. Alabama Gas Co. v. Jones, Ala.Sup., 13 So.2d 873, 876. But the same favorable presumption attends the lower court's ruling upon review of such nisi prius action. Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537. And in such cases "the internal evidence, the verdict itself, in the light of the facts clearly disclosed by the evidence, usually furnishes the determining data." Yarbrough v. Mallory, 225 Ala. 579, 581, 144 So. 447, 449.
Here, again, it seems to us that no clear and positive showing is made to warrant correction of a ruling on the proposition by the wise judge who presided at the trial and heard the evidence.
The actual expense was a doctor's bill. The physical injuries were the hurting of back and kidneys next day, the serious pain and injury to the hand by fracture of the metacarpal bone, the consequent binding of the hand and forearm in splints for several weeks, the temporary loss of use thereof, the pain still occasionally existing, and the disfigurement of the hand by an enlargement or knot at the union of the fracture. Added to this were the embarrassment, wounded feelings, mental pain, etc. (McGhee Fink v. Cashin, Ala.Sup., 40 So. 63), claimed to have been suffered. All of this, together with the fact that greater damages are allowable if the jury should find that the injury was wantonly inflicted (Routledge v. Schmitt, 28 Ala. App. 167, 180 So. 127), convinces us that we should not disturb the jury's appraisement of these damages, the same having already been sustained as not excessive by the lower court.
Careful study of the whole case, in connection with the able brief and argument of appellant's counsel, impresses us that there is no reversible error. The judgment is therefore affirmed.
Affirmed.