Louisville & Nashville Railroad v. Perkins , 152 Ala. 133 ( 1907 )

McCLELLAN, J.

On a former appeal this court passed upon several of the questions now presented for review. So to these no new consideration will be given. —L. & N. R. R. Co. v. Perkins, Adm’r, 144 Ala. 325, 39 . South. 305.

Besides counts seeking recovery of damages for, it is averred, wanton, willful, or intentional acts resulting in the death of appellee’s intestate, there is a count (the first) which, eliminating its formal features, is in the following language: “That on, to-wit, the 3d day of January, 1903, the defendant Avas engaged in operating a railroad as a common carrier in the state of Alabama, and in the county of Butler in said state, and said defendant then and there so negligently conducted said business that by reason of such negligence plaintiff’s intestate, who- was a passenger on one of defendant’s passenger trains, received personal injuries which caused his death.” This is, of course, a good count for simple negligence. Upon the conclusion of the testimony the defendant requested the court in writing to give and read to the jury this charge: “(3) There can he no recovery in this case under the first count of the complaint.” The court refused it, and this action is assigned as error. Beginning with the Johnston Case, 79 Ala. 436, an announcement repeatedly reaffirmed in subsequent decisions, this court declared the rule that there can be no recovery on a count averring a willful or wanton wrong, where the testimony adduced shows only an act or omission constituting simple negligence. The principle recognized the well-defined distinction between the two actionable wrongs. Negligence, though incapable of translation into satisfactory definition, excludes the idea of intention; and under our decisions wantonness is hut descriptive of a condition so consciously leading to harmful results that the party charged may he deemed to have intended such results from Ms conscious dereliction or affirmative action. A corollary, resulting from the foregoing settled principles, is that on a count in simple negligence there can be no recovery, where the testimony adduced tends to establish only an intentional or wanton wrong. — Railroad v. Markee, 103 Ala. 161, 15 South. 511, 49 Am. St. Rep. 21; 1 Shear. & Red. on Neg. § 7.

To a count for willfulness or wantonness the only proper plea is a general traverse of the allegations. Contributory negligence is a plea inhibited, under our adjudications. To a count in simple negligence the contributory negligence of the injured party is pleadable. Against the former, however aggravated may be the injured party’s misconduct, it cannot be interposed to modify or defeat recovery. Against the latter, if his misconduct proximately contributes to the injury, his recovery is wholly barred. So- it is clear that not only is the distinction between intentional wrong and simple negligence important and wisely maintained in the primary pleading, but also that to each, respectively, wholesome and marked differences exist in the matter of defenses allowable. Somewhat illustrative of the principle, as a matter of pleading, it follows that a replication setting up, in answer to a proper plea of contrbu-tory negligence, the intentional or wanton infliction of the injury, would be a patent departure from the cause of action — simple negligence, a characteristic of which is the absence of intention in the act originally counted on. It is elementary that a replication must not be repugnant to the original cause of action. — Herring v. Skaggs, 73 Ala. 446.

The first count is wholly without support, in fact or justifiable inference, under the record before us. The testimony adduced, regardless of its source, tends to show only and solely a Avillful or wanton wrong, resulting in the death of intestate. The record is entirely silent as to any fact or inference warranting a conclusion that negligence proximately caused the death of intestate. Such being the state of the case, the defendant was entitled to the affirmative charge asserting that there could he no recovery under the first count; and, if properly formed, its refusal was prejudicial error. There is, of course, no merit in the suggestion that, if error at all, no injury resulted to defendant, because the verdict is referable to other counts to sustain which there was evidence tending to do. Injury is presumed to follow error, unless the record affirmatively shows the contrary. There is no meeting of this condition by this record.

It is insisted that the charge is bad because it directs, without hypothesis, that there can be no recovery under the first count. The determination of the question, when presented by appropriate instruction, whether there is any evidence to support material averments of the plaintiff’s complaint, or a given count thereof, being one of law, is addressed to the court, and is not within the province of the jury. It necessarily follows that, if the party requesting is entitled to the instruction because there is such want of evidence, hypothesis would be an absurdity. In such cases the jury may he, on proper request, summarily directed in the premises. — Proffat’s Jury Trials, § 351 et seq.; 1 Slash. Ins. to Juries, § 5, and notes.

Since the cause must be remanded for another trial, we think it proper to pass upon the question raised by defendant’s refused charges, seeking to give effect to the proof offered under plea 7, which denies the representative capacity of plaintiff at the time the suit was instituted. It is conceded that the probate court of Washington county is a court of general jurisdiction and that its appointment of plaintiff as administrator was effected. But from the facts, which the reporter will summarize, the appellant abstracts the legal proposition that the appointment was not accomplished until the formal entry of the order to that end on the minutes of the court, which was done subsequent to the commencement of the action. While the plea is formally correct, and hence was not subject to the demurrers interposed, yet, after the introduction of the certified copy of the records of the Washington county court, it is clear that the purpose of the plea and the only effect of the proffered testimony directed against the plaintiff’s authority was to collaterally assail the order of the appointing court. This cannot, under these circumstances, be done. — Breeding v. Breeding, 128 Ala. 412, 30 South. 881; Bromberg v. Sands,. 127 Ala. 416, 30 South. 510; Winter v. London, 99 Ala. 263, 12 South. 438.

But it is insisted that the effort is, not to question the validity of the appontment, but to ascertain the true date thereof. A perfect answer to this contention is that, from the face of the record, it appears that the appointment was made at the special February term. It is no more permissible to collaterally impeach orders or judgments in respect of the assured time of their rendition, as shown by them, than any other part of them. Any other rule would render records of courts extremely uncertain and unreliable. The rendition of a judgment or order is the judicial act involved in the court’s pronouncement in the premises; whereas, the entry of the order or judgment is but the performance of the ministerial act consequent upon such rendition. — 1 Black on Judgments, § 106. That there must elapse some time between the necessarily antecedent rendition of the judgment or order and the entry thereof is clearly recognized in subdivision 2 of section 8365 of the Code of 1896. Therein the judge of probate is required to perform the ministerial duty of entering, within three months, on the proper record, the minutes of his official acts and proceedings. We do not understand it to have ever been held in this state that an order or judgment is not such until entered upon the records of the court rendering the judgment or order or decree. Of course, diligence should mark the faithful recordation of orders or judgments, and important consequences may, upon occasion, result from delay in the performance of the duty; but under the influence of the principles above announced, and the statute (section 3365) as well, it is clear that proceedings nunc pro tunc, or appeal to the authority provided by subdivision 7 of section 3372, would be improper where the entry is made within the three months fixed. The Hudson Cases (Hall v. Hudson, 20 Ala. 284; Hudson v. Hudson, Id. 364, 56 Am. Dec. 200), respectively, are not authority here, for the obvious reason that in those cases years had elapsed since rendition, and no entry whatever had ever been made upon the minutes of the court. If it were established that judgments and orders were such only upon entry in their proper place, the uncertainty and confusion resulting would be appalling. It follows that there was no proper issue of the representative capacity of plaintiff triable by the jury; and all alleged testimony to that end might well have been, upon seasonable application, withdrawn from the jury, or it (the jury) instructed that plaintiff was authorized to prosecute the action as the duly appointed administrator of intestate’s estate.

There is no occasion to consider other assignments. For the error stated, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.