Mobile J. & K. C. R. R. v. Smith

DOWDELL, J. Wantonness is the legal equivalent of willfulness. In an action for damages for personal injuries, a complaint which avers that the act complained of was willfully or wantonly done is not demurrable for the reason that the averment is made in the alternative form. The case of Memphis & Charleston R. R. Co. v. Martin, 117 Ala. 368, 23 South. 231, relied on by counsel for the appellant, dees not support his contention. The fifth count in that case was held by the court to be a count in simple negligence. The sixth count in the complaint before us is clearly a count in wantonness. In such a case, it is immaterial whether the injured party be a trespasser or not. — Railroaid Co. v. Quest, 144 Ala. 373, 39 South. 654. The sixth count of the complaint was not subject to the grounds of demurrer assigned. The case was tried in the court below on the sixth count, which counted on the willful or wanton misconduct on the part of the defendant’s servants or agents. The evidence has been carefully considered, and there is nothing in it that we can find showing that the defendsant’s agents or servants were 'guilty of either willful or wanton misconduct in the infliction of the injury on the plaintiff complained of, or any evidence from which we think the jury would be authorized to reasonably infer that the defendant’s agents or servants were guilty as charged. Our conclusion is that the defendant was entitled to the general charge as requested, and that the trial court erred in its refusal. We deem it unnecessary to consider other assignments of error which relate to charges that were given at the instance of the plaintiff. For the [316] error pointed out, the judgment must be reversed, and the cause remanded. Reversed and remanded. Haralson, Anderson, and Denson, JJ., concur.