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Gray v. Cooper

Supreme Court of Alabama
Oct 27, 1927
114 So. 139 (Ala. 1927)

Opinion

6 Div. 851.

June 30, 1927. Rehearing Denied October 27, 1927.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

J. P. Mudd and L. D. Gardner, Jr., both of Birmingham, for appellant.

The complaint should allege facts giving rise to a duty to use care owing by defendant to plaintiff, and should allege facts negativing the inference that defendant was a trespasser. T. C. I. Co. v. Smith, 171 Ala. 251, 55 So. 170; Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Sloss Co. v. Weir, 179 Ala. 227, 60 So. 851; Ensley R. Co. v. Chewning, 93 Ala. 24, 9 So. 458; G. A. U. R. Co. v. Julian, 133 Ala. 371, 32 So. 135; Rice v. Southern R. Co., 175 Ala. 69, 56 So. 587. The evidence of permanent injury was insufficient to predicate an award of damages therefor. Norwood v. Jones, 214 Ala. 314, 107 So. 858; Illinois, etc., Co. v. Weber, 196 Ill. 526, 63 N.E. 1008. To recover more than nominal damages for permanent decreased earning capacity, plaintiff must furnish data upon which the plaintiff's future earning capacity can be determined with reasonable accuracy. The jury should not be permitted to speculate upon the amount of damages for permanent decreased earning capacity. Ala. F. I. Co. v. Ward, 194 Ala. 242, 69 So. 621; B. R. L. P. v. Colbert, 190 Ala. 229, 67 So. 513; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am. St. Rep. 73; Hines v. Wimbish, 204 Ala. 350, 85 So. 765; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 So. 733; B. R. L. P. Co. v. Harden, 156 Ala. 244, 47 So. 327; Sloss Co. v. Stewart, 172 Ala. 516, 55 So. 785. Loss of time from work, without more, does not imply any damage. B. R. L. P. Co. v. Simpson, 190 Ala. 138, 67 So. 385; B. R. L. P. Co. v. Colbert, supra; Montgomery E. R. Co. v. Mallette, 92 Ala. 209, 9 So. 363.

Altman, Taylor Koenig, of Birmingham, for appellee.

Where a fact omitted from the complaint is indisputably proven, overruling a demurrer to the complaint on that ground is rendered innocuous. B. S. R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339. Where an injured person fails to introduce some evidence as to permanent injuries and as to earning capacity, he may recover nominal damages. A. G. S. v. Taylor, 196 Ala. 37, 71 So. 676; B. R. L. P. Co. v. Bush, 175 Ala. 49, 56 So. 731; Sloss Co. v. Stewart, 172 Ala. 516, 55 So. 785; B. R. L. P. Co. v. Harden, 156 Ala. 244, 47 So. 327. The permanence of an injury may be inferred from the time it has continued. 4 Sutherland on Damages (4th Ed.) 474; Macon R. Co. v. Streyer, 123 Ga. 279, 51 S.E. 342; Southern R. Co. v. Clariday, 124 Ga. 958, 53 S.E. 461. Where there is evidence to support plaintiff's cause of action, the question is for the jury. Southern States F. I. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63; Allen v. Fincher, 187 Ala. 599, 65 So. 946.


The trial was had on the simple negligence count and pleas of the general issue, and contributory negligence. Count one was not subject to demurrer directed thereto. Tillery v. Walker, ante, p. 676, 114 So. 137.

The subject of permanent injuries under the required pleading and evidence was the subject of recent discussion in Birmingham Electric Co. v. Cleveland (Ala. Sup.) 113 So. 403, and we have no desire to depart therefrom. The reasonable inferences from the evidence prevented the affirmative instruction requested. And there was no error in refusing charges, which we indicate as A and C.

Ante, p. 455.

Refused charge B, as follows: "If you believe the evidence, you cannot award the plaintiff more than nominal damages for loss of time from his business or occupation due to his injury" — should have been given. The fact that plaintiff testified that he conducted the business as a furniture dealer; was the "only employee in the concern"; his duties required him to handle furniture; that he had not been able to go back to work; and indicated the time or duration of his absence, was not a compliance with the requirement for specific data on which to rest damages causing him to "lose time from his work," as declared for in the complaint.

In M. E. Ry. Co. v. Mallette, 92 Ala. 209, 9 So. 363, it was said:

"There was no evidence in the case as to any pecuniary loss resulting to the plaintiff from inability to pursue his avocations in consequence of the injury complained of * * * non constat, but that during this period, and notwithstanding his disability, he received fully as much as he would have done had he not been disabled at all."

This rule has been adhered to by this court in B. R. L. P. Co. v. Simpson, 190 Ala. 138, 67 So. 385; B. R. L. P. Co. v. Colbert, 190 Ala. 229, 67 So. 513.

The case was one for the jury on the issues of fact. It is unnecessary to advert to the motion, since there was error in refusing charge B.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.


Summaries of

Gray v. Cooper

Supreme Court of Alabama
Oct 27, 1927
114 So. 139 (Ala. 1927)
Case details for

Gray v. Cooper

Case Details

Full title:GRAY v. COOPER

Court:Supreme Court of Alabama

Date published: Oct 27, 1927

Citations

114 So. 139 (Ala. 1927)
114 So. 139

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