Birmingham Railway, Light & Power Co. v. Chastain

DENSON, J. This action is one by the father of a minor son against the defendant, as a common carrier of passengers, for the loss of the services and society of the son consequent upon injuries alleged to. have been occa — 426 — sioned by the defendant’s conductor, in wantonly or intentionally throwing or causing to fall from one of the defendant's cars, while the same was in rapid motion, the said minor son. The first ground in the assignment of errors challenges the correctness of the judgment of the court in overruling a demurrer to the second count of the complaint. It is first urged* as an objection to the count, that it does not sufficiently aver that the agent of the defendant, alleged to have been guilty of wanton or intentional misconduct, was acting within the scope of his authority. This objection is not, we think, well founded. In the outset the count avers “that on said day defendant’s servant or agent on said car, acting within the line and scope of his authority, threw or caused plaintiff’s minor son * * * to fall from said car,” etc. Then, after setting forth the injuries and damages consequent, thereupon, and in the conclusion of the count, it is alleged that “defendant’s servant or agent on said car, to wit, the conductor thereof, wantonly or intentionally caused plaintiff to suffer said injuries and damages, by wantonly or intentionally throwing or causing plaintiff’s said minor son to fall from said car while same was in rapid motion, well knowing that so to do would likely or probably cause great personal injury to said minor son.” The argument in support of this objection is founded upon a‘separation of this concluding portion of the count (by the defendant termed the charging part) from the rest of the count. If this theory of construction were correct, then manifestly the contention of the defendant would be sound; but the court is of the opinion that the count should be construed as a whole. So construing it, the latter part is qualified by the averment (heretofore referred to) that the agent or servant was acting within the scope of his authority. In other words, looking to — 427 — all the averments of the count, and giving to- them a fair and reasonable construction, the agent or servant referred to iii the conclusion is the identical agent or servant indicated in the former part of the count; and in the conclusion the conduct complained of is the same as that formerly referred to, notwithstanding the interpolation of the words “wantonly or intentionally.” It is next argued-against the■ "count.'that the injuries to the son are not averred with sufficient certainty. The rule is settled in this jurisdiction that in cases of personal injury, where the recoverable damages depend upon the extent of the hurts sustained and the suffering endured on account thereof, the complaint must state the injuries with certainty and definiteness to a common intent, so that the defendant may be prepared to rebut the case the- plaintiff proposes to lay before the jury.— City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Ency. PI. & Pr. 377, 378, 399. And it was held in- the Henry Case, supra, that a complaint, the averments of which,in respect to the injuries, were that they were “serious,” and that the plaintiff had suffered and would continue to suffer from them “both in body and in mind,” was open to demurrer for indefiniteness. Without stopping to analyze the Henry Gase further, it appears that the case in judgment is distinguishable from it. I-Iere the recoverable damages are for the service's of the child lost to the parent, and not from any suffering consequent upon the injury; and, while the loss of services is a consequence of the injuries inflicted on the child, it would seem that the averments of the complaint in judgment, to the effect that “plaintiff’s minor son was severely injured in his person, and was made sick and sore, and as a proximate consequence thereof plaintiff lost the services and society of his said minor- son’” should be held to be a sufficient itemization of the son’s injuries to show the foundation or condition upon which plaintiff bases — 428 — his claim for lost services, and even for other items of damages claimed in the complaint. — Birmingham, etc. Co. v. Lintner, 141 Ala. 420, 38 South. 363, 109 Am. St. Rep. 40; Bube v. Birmingham, etc., Co., 140 Ala. 270, 37 South. 285, 103 Am. St. Rep. 33; Gulf, etc., Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 66; Street R. R. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752; Ehrgott v. New York, 96 N. Y. 275, 48 Am. Rep. 622; Ohio, etc., Co. v. Hecht, 115 Ind. 443, 17 N. E. 297; Hanson v. Anderson, 90 Wis. 195, 62 N. W. 1055; 15 Ency. PI. & Pr. 453; 13 Cyc. 146, 179, 185. The demurrer was properly overruled. In this action the recoverable damages are limited to such as will compensate the parent for the loss of the child’s services up to the time of his majority, for such reasonable amounts necessarily expended in and about the treatment and care of the child, and for the value of the parent’s services while nursing* the child. — 13 Cyc. 146; Woodward Iron Co. v. Curl, 153 Ala. 205, 44 South. 974; Bube v. Birmingham, etc., Co., 140 Ala. 276, 37 South. 285, 103 Am. St. Rep. 33; Central Foundry Co. v. Bennett, 144 Ala. 184, 39 South. 574, 1 L. R. A. (N. S.) 1150, 113 Am. St. Rep. 32; Southern Railway Co. v. Crowder, 135 Ala. 417, 33 South. 335. In estimating the damages, the jury could not legally consider that the1 son might ha.v(' become a locomotive engineer or embraced other like profitable or more profitable calling during his minority. — Central Foundry Co. v. Bennett, supra. Dads v. Kornman, 141 Ala. 479, 37 South. 789; Smith Adm’r, v. Middleton, 112 Ky. 588, 66 S. W. 388, 56 L. R. A. 484, 99 Am. St. Rep. 308; cent. Mfg. Co. v. Cotton, 108 Tenn. 66, 65 S. W. 403. But charge 1, refused to the defendant, as. clearly shown by the record, and also by brief of appellant’s counsel, was asked solely for the purpose of answering the argument of counsel to the jury. Otherwise, it is — 429 — abstract. If counsel deemed the argument of counsel for plaintiff improper, he could have screened his client from its effect by an objection and motion to (exclude it from the jury. The refusal of such charges involves no error.— Brown’s Case, 121 Ala. 9, 25 South. 744; Mitchell’s Case, 129 Ala. 23, 30 South. 348. While, as announced above, the subject of damages may not be considered in respect to any particular calling, yet the jury should not be restricted to the value of the son’s services at the time' the injury occurred. They may legitimately consider that, with age, growth, and experience, his value to his father might have increased. In this view, charges 2 and 3 of the defendant’s series were properly refused. — Central Foundry Co. v. Bennett, supra; Ihl v. Forty-Second Street, etc., Co., 47 N. Y. 321, 7 Am. Rep. 450; Houghkirk v. President, etc., S. & H. C. Co., 92 N. Y. 220, 44 Am. Rep. 370, O’Mara v. Hudson v. R. R. Co., 38 N. Y. 445, 98 Am. Dec. 61. Refused charge 4, as the record shows, is a duplicate of a charge that was given for the defendant; hence error cannot be predicated upon its refusal. Defendant’s objection to the question caling for testimony that plaintiff paid his car fare in visiting his son while the latter was at the hospital (even conceding the illegality of such testimony) came too late. The court cannot be put in error for overruling it, nor for refusing fo exclude the responsive answer to the question. — McCalman’s Case, 96 Ala. 98, 11 South. 408; Billingsley’s Case, 96 Ala. 126, 11 South. 409. The jury assessed the plaintiff’s damages at $3,250, and the only question remaining open for consideration is whether or not the verdict is excessive. The argument in support .of the insistence of excessiveness is based solely on the theory that the jury Avas not authorized to consider that the earnings of the nine year old boy might have increased as he approached his majority. In other — 430 — words, defendant would limit tlie plaintiffs recovery to the value; per week of the son’s services, as fixed at the time the injury occurred, up to his majority, properly discounted. We have; seen that such is not the rule by which the jury should he restricted. The evidence shows that the boy lost all ot his right hand, except the thumb and index finger, and that these are permanently stiff; that his skull was fractured, and up to the time of the trial, that he would have sudden and acute pains in his head, and dull aching, and hemorrhages from the nose; and that his mind was not active, and his memory not good. But it shows that, up to the time of the injury, he was unusally large and healthy, and fully up to, if not above, the average in intellect. Under these facts, we think it was within the province of the jury to find that, whereas, without the injury his services, which had already begun to be worth to his father $2 or $3 per week, and “probably more,” would likely have1 greatly increased in value with the boy’s growth and development, yet, under the actual facts of his physical injury and resultant mental impairment, his services would be of little if any value. The subject was for the careful and conscientious consideration of the jury, and we are not convinced that they erred.-— Strohm v. N. Y. & L. E. R. Co., 32 Hun (N. Y.) 20; Seltzer v. Saxton, 71 Ill. App. 232; Central Mfg. Co. v. Cotton, 108 Tenn. 66, 65 S. W. 403; Rosenkranz v. Lindell R. Co., 108 Mo. 9, 18 S. W. 890, 32 Am. St. Rep. 588; O’Mara v. Hudson River R. Co., 38 N. Y. 445, 98 Am. Dec. 61. No error being shown, the judgment of the lower court is affirmed. Affirmed. Tyson. (1 J., and Simpson and Anderson, JJ., concur.