Summary
In First Nat. Bank v. Sanders, 227 Ala. 313, 149 So. 848, it is said: "To constitute wantonness, it was not essential that Brock, the driver of the car, should have entertained a specific design or intention to injure the plaintiff.
Summary of this case from Nangle v. Northern Pacific Railway Co.Opinion
4 Div. 695.
October 5, 1933.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Action for damages for personal injuries by O. B. Sanders against the First National Bank of Dothan. From a judgment for plaintiff, defendant appeals.
Affirmed.
The following charges, made the basis of assignments of error 4 and 5, were refused to defendant:
(4) "The court charges the jury that it is only where the employee or agent operating the automobile fails to exercise reasonable care to avoid injuring the plaintiff after he has been discovered in a position of peril and his peril of injury becomes apparent, that such employee or agent is held to be guilty of wantonness or recklessness such as will overcome the contributory negligence or the assumption of risk by the plaintiff."
(5) "The court charges the jury that wantonness is the equivalent of intentional wrong and unless it finds from the evidence that S. H. Brock intentionally injured the plaintiff it cannot find a verdict against the defendant under Count A."
H. R. McClintock, of Dothan, for appellant.
Plaintiff, a licensee, was entitled to recover only for wanton or reckless injury after discovery of peril. Count A is not sufficient as a wanton count. Crider v. Yolande C. C. Co., 206 Ala. 71, 89 So. 285; Birmingham Ry., L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Haley v. Kansas City, M. B. R. Co., 113 Ala. 640, 21 So. 357; Lawrence v. Kaul L. Co., 171 Ala. 300, 55 So. 111; Martin v. Union Springs N. R. Co., 163 Ala. 215, 50 So. 897; Louisville N. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; So. R. Co. v. Stewart, 179 Ala. 304, 60 So. 927. The verdict in the former trial was in favor of defendant on Count A. Judgment on that verdict was res adjudicata as to the present suit. Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514; First Nat. Bank v. Sanders, 225 Ala. 417, 143 So. 578; Dunning v. Town of Thomasville, 16 Ala. App. 70, 75 So. 276; Terrell v. Nelson, 199 Ala. 436, 74 So. 929; Ala. Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Schillinger v. Leary, 201 Ala. 256, 77 So. 846; Thompson v. Johnson, 201 Ala. 315, 78 So. 91. The charge is assignment of error 3 should have been given. Duke v. Gaines, 224 Ala. 519, 140 So. 600. Charges made the basis of assignments 4 and 5 state correct propositions of law and should have been given. Crider v. Yolande C. C. Co., supra; First Nat. Bank v. Sanders, supra; Duke v. Gaines, supra. There was not a scintilla of evidence showing any acts on the part of Brock which constituted wanton negligence. Defendant was due the affirmative charge. Louisville N. R. Co. v. Parker, 223 Ala. 626, 138 So. 231; Patton v. Texas P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Chesapeake O. R. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157; Johnson v. Com. L. Ins. Co., 223 Ala. 668, 138 So. 257, 83 A.L.R. 822; McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Ellis v. New York Life Ins. Co., 214 Ala. 166, 106 So. 689; Metropolitan L. Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A.L.R. 852; Ætna L. Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252; New York L. Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547. The verdict, being contrary to the law and evidence, was necessarily given through sympathy; and it should not be permitted to stand. Louisville N. R. Co. v. Pearson, 97 Ala. 211, 12 So. 176; Sutherland v. State, 24 Ala. App. 573, 139 So. 110.
C. L. Rowe, of Elba, for appellee.
The judgment on former trial was reversed. Demurrer to count A was not refiled on the second trial, and cannot be considered on appeal. Marsh v. Elba Bank Trust Co., 205 Ala. 425, 88 So. 423; Alabama City, G. A. R. Co. v. Bates, 155 Ala. 347, 46 So. 776; McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66; Campbell v. American Bonding Co., 172 Ala. 458, 55 So. 306. A judgment which has been reversed cannot be the basis of res adjudicata. 34 C. J. 773, 899; Holmes v. Central of Ga. R. Co., 22 Ala. App. 355, 116 So. 323; Id., 217 Ala. 333, 116 So. 325; State v. Robertson (Mo. Sup.) 187 S.W. 34; Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 144 So. 813. Refusal of a charge substantially covered by other charges given or the oral charges is not reversible error. 27 Alabama and Southern Digest, Trial, 260(1). Contributory negligence is not a defense against a count charging wanton injury. Giardina v. Stagg, 214 Ala. 301, 107 So. 857; Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Allen v. Birmingham Southern R. Co., 210 Ala. 41, 97 So. 93; Grauer v. A. G. S. R. Co., 209 Ala. 568, 96 So. 915. One may be guilty of wanton misconduct without actual intent to injure. Birmingham Ry., L. P. Co. v. Murphy, 2 Ala. App. 588, 56 So. 817; Central of Ga. R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Allison C. T. Co. v. Davis, 221 Ala. 334, 129 So. 9; Alabama Great Southern R. Co. v. Ensley T. S. Co., 211 Ala. 298, 100 So. 342. When the evidence is in conflict, it is a jury question as to whether acts complained of constitute wanton negligence. Byram Co. v. Livingston, 225 Ala. 442, 143 So. 461; Blankenship v. Van Hooser, 221 Ala. 542, 130 So. 63; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Central of Ga. R. Co. v. Pruden, 21 Ala. App. 281, 107 So. 716; Perry Supply Co. v. Brown, 221 Ala. 290, 128 So. 227; Mobile Electric Co. v. Fritz, 200 Ala. 692, 77 So. 235; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. The question of amount of damages is for the jury to determine, and a judgment overruling motion for a new trial on ground of excessiveness of verdict will not be reversed unless it affirmatively appears that the verdict was based on sympathy or prejudice. Godfrey v. Vinson, supra; Norwood Transp. Co. v. Crossett, 207 Ala. 222, 92 So. 461; Atlantic Coast Line R. Co. v. Russell, 215 Ala. 600, 111 So. 753; Bachelder v. Morgan, 179 Ala. 339, 60 So. 815, Ann. Cas. 1915C, 888; Birmingham Electric Co. v. Baker, 219 Ala. 324, 122 So. 316.
Plaintiff and his companion, Culver, were invited by one Brock to ride on the Ford roadster which the latter was driving. The proof tends to show that upon Culver entering the car and taking his seat by Brock there was not sufficient room for another, and plaintiff stood upon the running board with the knowledge and approval of Brock. While thus riding and holding on to the car top, plaintiff, by a sudden stop of the car, was thrown several feet and suffered severe injuries.
On former appeal (First National Bank of Dothan v. Sanders, 225 Ala. 417, 143 So. 578), it was in effect conceded the evidence sufficed for the jury's consideration that Brock was at the time acting as the agent of the defendant in the use of the automobile, and within the line and scope of his authority, though without authority to invite another to ride, and the holding was that plaintiff, being a mere licensee, could only recover under the particular facts of this case upon the theory of a wanton or willful injury inflicted by Brock in the use of the automobile. The verdict was rested on count 6, which was for simple negligence, and the judgment was accordingly reversed.
Upon the second trial plaintiff eliminated count 6 and went to the jury on wanton count A, and recovered the judgment, from which this appeal is prosecuted.
The demurrers interposed to count A on the first trial were not reinterposed upon the second trial, and of consequence no ruling had thereon since the reversal of the judgment. Under the uniform decisions of this court, there is therefore nothing here presented for review as to the demurrers to said count, and assignments of error based thereon are without merit. Alabama City, G. A. R. Co. v. Bates, 155 Ala. 347, 46 So. 776, 778; McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66; Marsh v. Elba Bank Trust Co., 205 Ala. 425, 88 So. 423.
The effect of the reversal of the former judgment by this court was to annul it in its entirety, and set aside all rulings of the court on the pleadings embodied therein. Marsh v. Elba Bank Trust Co., supra. As said in Alabama City, G. A. R. Co. v. Bates, supra, the judgment having been reversed and the cause remanded, "the case then stood as though such judgment had not been rendered." And it is the generally accepted rule that such a judgment so reversed cannot be made the basis of res adjudicata. 34 Corpus Juris, 773-899. The plea of res adjudicata as to count A, based upon the finding of the jury on count 6 on the former trial, was therefore insufficient, and the demurrers thereto properly sustained. State ex rel. Scullin v. Robertson (Mo. Sup.) 187 S.W. 34.
The use of the word "believes" instead of the words "reasonably satisfied" in the refused charge made the basis of the third assignment of error sufficiently justifies the trial court in its refusal. St. Louis-San Francisco Ry. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433. Moreover, the substance of this charge was embraced in the oral charge of the court as well also in one of defendant's given charges.
The refused charge made the basis of the fourth assignment of error is misleading. Count 8, in the case of Crider v. Yolande Coal Coke Co., 206 Ala. 71, 89 So. 285, cited by appellant, was a subsequent negligence count, and that authority is here in-apt. Count A in the instant case is one of wantonness, as to which contributory negligence referred to in the charge is no defense. The charge was refused without error.
To constitute wantonness, it was not essential that Brock, the driver of the car, should have entertained a specific design or intention to injure the plaintiff (Allison Coal Transfer Co. v. Davis, 221 Ala. 334, 129 So. 9; Central of Georgia R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Duke v. Gaines, 224 Ala. 519, 140 So. 600, 601), and the refused charge appearing in the fifth assignment of error so requiring was properly refused. We may add that the oral charge of the court in the definition of wantonness correctly followed the above-noted decisions.
Nor are we of the opinion defendant was due the affirmative charge as insisted. The jury could reasonably infer from the evidence that Brock, the driver, with a knowledge of plaintiff's position of danger, standing on the running board of the automobile, and while running at considerable speed, abruptly and without warning brought the car to a complete and sudden stop, and producing such a jerk as to throw the plaintiff into the roadway some ten or twelve feet in advance of the car, and plaintiff's companion, Culver, who was on the seat, with much force against the dashboard. The manner of plaintiff's fall from the car and the severity of the injuries received, particularly the breaking of the large bone of his leg which cut through the flesh and skin, and the injury to his shoulder, all tend to indicate the suddenness and abruptness with which the car was brought to a stop.
"Wantonness is a conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party could be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury." Duke v. Gaines, supra.
As to whether or not these essential elements were established from the proof was a jury question, and the affirmative charge properly refused.
There was in fact but little conflict in the proof, and we do not consider the motion for a new trial based upon the ground that the verdict was contrary to the great weight of the evidence needs any detailed discussion. Nor are we prepared to say the verdict was excessive. Plaintiff's injuries were severe. He lost much time, incurred considerable expense, and suffered much pain. In addition, his injury to his leg is permanent. But we omit any detail discussion. These two grounds of the motion for new trial have been given careful consideration in consultation, and the conclusion reached the ruling of the trial court thereon should not be here disturbed.
The assignments of error argued have been considered, and no reversible error appears. The judgment will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.