Gray v. Cooper , 216 Ala. 684 ( 1927 )

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. 403,¹ 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.

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.

¹ Ante, p. 455.