Birmingham Railway L. & P. Co. v. Hinton

DOWDELL, J. This is an action to recover damages for personal injuries received by * plaintiff’s intestate through the alleged negligence of the defendant, and Avhich said injuries it is averred resulted in the death of said intestate. In answer to the complaint the defendant pleaded the general issue and four special pleas. By the third special plea the defendant pleaded a release in Avriting, which said release is set out in haec verba in the plea. To this plea the plaintiff filed a number of replications, to which demurrers were interposed by the defendant. The demurrers Avere overruled as to replications 3, 9, and 10, and sustained as to the others. The [474] overruling by the court of the demurrers to replications above numbered is here assigned as error, and insisted on as such. Replication 3 was as follows: “For replication to the third plea, the plaintiff says that if the defendant has a release, as averred in said plea, it was given at a time when palintiff’s intestate was under the influence of drugs and opiates to such a degree that she was mentaly incompetent and incapacitated to contract; hence said release is void and furnishes no defense in this action.” The question raised by the demurrer to this replication is whether or not, on the facts stated, the contract of release is void, or only voidable, and, if only voidable, whether such defense is available without first returning or offering to return the money paid and received in consideration of the release. This question is common to each of the replications to the third plea, to which demurrers were interposed and overruled. We think there can be no distinction in principle, where mental incapacity to contract is set up in avoidance of the contract, whether it is produced by intoxication from strong drink or by the administration of drugs or opiates. In either case the mental incapacity is of a temporary character. The courts, however, in respect to contracts, have taken a clear distinction where the incapacity is the insult of permanent insanity, and where it is the result of intoxication, and hence only temporary. In the former case the contract is void, while in the latter it is merely voidable. Is the case of Oakley v. Shelley, 129 Ala. 467, 29 South. 385, it was said by this court: “Unlike general and permanent insanity and idiocy, drunkenness does not create such legal incapacity as will alone render a contract wholly void. Though it may furnish the party suffering from it ground for rescission, yet, being voidable only, the contract may bp affirmed and made binding on him after he [475] becomes sober.” — Wright v. Waller, 127 Ala. 557, 29 South. 57, 54 L. R. A. 440, wherein authorities are collated relating to mental incapacity to contract produced by drunkenness. The contract in the case before us being voidable, and not void, was open to affirmance or disaffirmance on the termination of the temporary incapacity produced by the drugs and opiates. If disaffirmed, the duty rested upon the party to return the money received. A party may not repudiate a contract, and at the same time hold onto and enjoy the benefits received under it. — Harrison v. Ala. Mid. Ry., 144 Ala. 246, 40 South. 394, and authorities there cited. In the case of Western Ry. v. Arnett, 137 Ala. 414, 34 South. 997, cited by counsel for appellee, it was held that a return of the money received was not necessary, where the replication alleged that "it was made as a gift. Such is not the case before us. The replications in the present case, on the facts stated, disclosing a contract voidable merely, and failing to allege a return of the money received, or some sufficient excuse in law for not doing so, were rendered by such omission subject to the demurrers. It is argued by counsel for appellant that eror was committed in overruling the demurrers to the second replication of the plaintiff to the defendant’s second plea. There is no assignment of error in the record on this ruling of the court below, and we will not, therefore, consider it. There is no necessity for a discussion of the question raised upon the selection of the jury, since upon another trial of the cause the jury will be selected under a different statute. The next question insisted on, presented by the twelfth assignment of error, is a refusal to give written charge 3 requested by the defendant. We fail to find any evidence in the record tending to show that plaintiff’s intestate [476] Avas guilty of negligence in respect to the child Clyde going back into the burning building after having been carried to a place of safety. The charge Avas abstract, and for this reason, if no other, properly refused. Charge 6, refused to the defendant, hypothesizes a fact not shoAvn in the evidence; that is, that plaintiff’s intestate “came through the miscarriage all right.” The evidence, as Avell as all of its tendencies, Avere Avithout dispute that she did not come through the miscarriage all right. This charge ignores the evidence Avhich tended to sIioav that the injuries received by said intestate Avere a contributing cause to her miscarriage, and, even if the blood poisoning which followed was the direct and immediate cause of her death, it was in the chain of causations originating in the injuries inflicted by the burns received. Charge 8 asserted a correct proposition of laAv, but avc are not prepared to say that it was free from misleading tendency. The undisputed evidence showed that in the present case the passing train threw out large quantities of sparks. The tenth, eleventh and fifteenth charges were prop erly refused. Each of these charges ignored the evj dence showing that the intestate went back into the building to save her little child, and that it was while in the effort to rescue her child that she was herself injured. For the errors pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded. Tyson, C. J.. and Anderson and McCleelan. J.T., concur.