McNeil v. Munson S. S. Lines

63 So. 992, 184 Ala. 420, 1913 Ala. LEXIS 630

• Court: Supreme Court of Alabama
• Decided: December 18, 1913
• Status: Published

Opinions

McCLELLAN, J.

— Our opinion is that the writ of certiorari to the Court of Appeals should be granted to the extent hereinafter indicated.

The action is by the servant against the master for damages for personal injuries received by the former while in the service of the latter. A full statement of the case, as reported for the Court of Appeals, will be found in 8 Ala, App. 610, 62 South. 459 — 468. The complaint contained counts ascribing the injury to wanton or willful misconduct mid counts ascribing the injury to simple negligence, for which, if sustained and unavoided, the defendant was responsible. The trial court gave, at the instance of the defendant, the general affirmative charge, denying the right of the plaintiff to recover on the wanton or willful counts, and submitted to the jury the issue of simple negligence vel non raised by the counts presenting that theory of liability. The Court of Appeals concluded that the trial court erred in thus taking from the jury the issue of wantonness or willfulness vel non as presented by counts predicated of that theory of liability. But the Court of Appeals adjudged that the stated error was rendered innocuous, for that the jury found against the plaintiff- — for the defendant — on the issue of simple negligence vel non, the appellate court concluding, upon the evidence, that the finding of the jury against the plaintiff on the simple negligence counts necessarily comprehended a conclusion adverse to plaintiff on a fact or act or omission common to both his theory of liability for simple negligence mid for wanton or willful misconduct. This ruling of the Court of Appeals may be reduced to this legal formula: Where the plaintiff’s complaint declares for liability in counts asserting simple negligence and counts asserting willful or Avanton misconduct, to his proximately resulting injury, it is error without injury to give the affirmative charge against the plaintiff’s right to recover under the counts alleging wanton or willful misconduct when the court submits to the jury the issue made by the counts averring simple negligence, and the jury returns a verdict fo.r the defendant on such counts in simple negligence, provided there is a controlling fact, act, or omission common to the plaintiff’s case under both theories of liability, viz., for simple negligence and for wanton or willful misconduct.

If the counts declaring as for simple negligence and the counts declaring as for wanton or willful misconduct presented identical issues of fact to the jury, the doctrine of error without injury could have application, as has been often ruled here. The distinction between causes of action rested upon simple negligence and those predicated of wanton or willful misconduct, as proximate causes of injury, is fundamental. It is recognized and observed in initial pleading, in the defenses that may be interposed to the former and not to the latter, in the evidence to sustain them, and in elements of damages that may be recovered in the latter but not in the former character or cause of action. Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted. The conceptions are essentially distinct, for an act or omission may be simple negligence, or wanton or willful wrong, according to the presence or absence of the mental state of the person who did or omitted to do that which duty required in the premises.

Having concluded, as the Court of Appeals did, that there was evidence which rendered it error to give the affirmative charge, against the plaintiff, on the counts charging willful or wanton misconduct, that error could not be cured by the submission to the jury of the very different issues raised by the counts declaring as for simple negligence.

Accordingly the judgment of the Court of Appeals is reversed for such further consideration of the appeal, consistent with the above stated views, as that court may deem proper.

Reversed and remanded.

Dowdell, O. J., and Anderson, Mayfield, Somerville, and de Graffenried, JJ., concur.