Birmingham Southern Railroad v. Gunn

141 Ala. 372

Opinion

SHARPE, J.

This cause was tried upon the fourth count of the complaint and upon no other. In that count the wrong averred is that “defendant wantonly or intentionally caused tin;: death of plaintiff’s intestate by wantonly or intentionally causing one or more of said cars to run upon or against plaintiff’s intestate,” etc. In City Delivery Co. v. Henry, (decided at last term) 34 So. Rep. 389, this court through its Chief Justice said of a similar charge made against a corporation, “We see no escape from tlie conclusion that tlie wantonness, willfulness and intentional wrong thus averred are the wantonness, willfulness or evil intention itself, as contradistinguished from the wrong of the servant only, for the consequences of which the defendant is responsible merely because of its relation of employer,” etc., and it was held the .action was in trespass and that to sustain such an averment, “proof of actual participation on the part of the defendant in the damnifying act was essential.” In this cause there was no evidence that the defendant corporation itself committed, or actually participated in, the commission of a wrong such as is averred in the fourth count. Therefore, -and on the authority of the decision above referred to together with that rendered in Southern Bell Tel. Co. v. Francis, 109 Ala. 224; and Sou. Ry. Co. v. Yancy, (in MSS.) 37 South., it must he held that there was error in the refusal of the general affirmative charge requested by the defendant.

In view of the character of the complaint and of the evidence, it seems unnecessary to consider other questions raised by the record.

Reversed and remanded.