Steward v. Gold Medal Shows , 244 Ala. 583 ( 1943 )

This is an action on the case by a mother, as plaintiff, against the defendant, a transient showman, for damages for enticing her minor son, fifteen years of age, to leave the plaintiff's home located in the City of Tuscaloosa, Alabama.

The case went to the jury on count one of the complaint and defendant's plea of the general issue.

The gravamen of said count which claims $2,900 as damages, to state it in the language of said count, is: "For that on, heretofore, towit, the 14th day of October, 1941, the defendants through their agents, servants or employees while acting within the line and scope of their employment, as such agents, servants or employees, enticed, persuaded or otherwise procured plaintiff's son Silas Steward, Jr., to leave plaintiff's home in the City of Tuscaloosa and go with the Gold Medal Shows, without the knowledge or consent of plaintiff."

As elements of the damages claimed, the complaint, as originally filed, averred: "That the said Silas Steward, Jr., is a minor of the age of towit fourteen years and that she is entitled to and has his care, custody, control, company and earnings, and that the agents, servants, or employees of defendant, as aforesaid, have deprived plaintiff of said care, custody, control, company, for towit four days, and earnings of her said minor child, and plaintiff has been put to greatconcern, worry, fear, humiliation and vexation as a direct and proximate [consequence] of the loss of her said minor child." [Brackets supplied.]

On motion of the defendant made in writing the court struck from said count the words above italicized.

The evidence offered by the plaintiff tended to show that he was employed by the defendant to work in and around the show, bringing water, picking up paper and when the show completed its engagement in Tuscaloosa and was pulling up and loading the plaintiff's said son assisted in the work, and rode on a truck to Luverne.

The plaintiff's son testified: "My name is Silas Steward, Jr., and I live at 1107 18th Street. I am related to the woman there (indicating plaintiff), she is my mother and I live with her. I am 15 years of age at the present time. My birthday was February 17, 1927. I was 15 yesterday. Back in October of last year I was 14 years old. I recall the occasion when the Gold Medal Shows were here and I got a job with them while they were here. They hired me right there on the show grounds; I don't know the gentleman's name who hired me. I see the gentleman sitting over there at the extreme end of the table (indicating Mr. Bloom) but I don't know whether I saw him down there or not. It was a little late when I got my job down there and was after they started tearing down. I picked up paper and toted water down there. I got the water over at Mr. Reynold's Grist Mill and carried it to the office. I don't know whose office it was. It was the Gold Medal Shows office. I also carried water to the people fixing the truck. There was a sign on the truck and it had on there 'Gold Medal Shows.' I also helped to tore down the hot dog stand and help tear down the ferris wheel. I did not do any work around the office except tote water. The man did not say how much he was going to pay me. I rode with them and went to Luverne, Alabama. I went down there on the truck, it was a Gold Medal truck and had the sign on it. When we got to Luverne I worked for one man down there. I don't know what his name was. He was with the Gold Medal Shows and the work I did for him was to help put up the Cat Drome. That is some kind of little old cats they have, you have to take ball and knock them down after they were set up on a stand. That is all I did with the show there in Luverne. I did some other work around the show grounds there picking up papers and one of the men that was with the show asked me to do it. I did not do any other work down there. They did not pay me anything. I did not say anything to them about it, I thought they were going to pay me but they didn't pay me. When I was in Luverne I slept on sawdust on the ground and on a lady's porch one night. The show people did not furnish me a place to sleep; they did not give me anything to eat and did not offer me anything to eat. The way I got back to Tuscaloosa, I had to work on a tractor cleaning off a tractor to come back. That was not for the show people, that was for some other people. * * *"

He also testified that at the time he went with the show he had a job with N.Y. A. and was receiving $22 per month for his work, all of which he gave to the plaintiff.

The defendant's evidence was to the effect that he did not know the boy, had never seen him until the day of the trial; that he did not employ him or authorize anyone else to employ him or induce him to go with the show.

The defendant's evidence further tended to show that several persons who had concessions, including the one who operated the "Cat Drome," paid a weekly charge or commission for their concession. That they were not employees of the defendant and that they furnished their own transportation facilities.

The trial resulted in a verdict and judgment for the defendant.

The reversal is rested upon the sole ground that the court erred in striking from the complaint the words "plaintiff has been put to great concern, worry, fear, humiliation and vexation as a direct and proximate [consequence] of the loss of her said minor child."

As to this ruling appellant's counsel states in brief: "It is anticipated by the writer that counsel for appellee will advance the argument that the errors of the court in its charge, if any, were cured by the verdict of the jury under the doctrine enunciated in the case of Roll v. Dockery [219 Ala. 374],122 So. 630, 65 A.L.R. 1473, and similar cases. If the erroneous ruling of the court appeared in the oral or written charges they would probably be correct. However, we have a different situation here and one which is governed, we believe, by the rule set forth in the case of Shelby Iron [Co.] v. Bierly [202 Ala. 422], 80 So. 806, 808, wherein Justice Sayre makes the following observation: 'In the case before us appellant was denied the right to present a meritorious defense. It differed in some respects from the defense which was allowed by the trial court; but to the advantage of those points of difference defendant was entitled.' "

In that case the court by sustaining a demurrer to one of defendant's pleas of contributory negligence had eliminated one of its defenses which, if it had been allowed and proven, was a complete answer to the plaintiff's case.

Under the law of that day contributory negligence was a special and affirmative defense, and to be pleaded at all must be pleaded with particularity, "and no other acts of negligence than those specially pleaded can be proved on the trial of the case, and, if proved, they can not be made a predicate for a verdict for the defendant." Southern Ry. Co. v. Shelton,136 Ala. 191, 34 So. 194; Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239. (This rule of pleading contributory negligence has probably been superseded by rule of pleading 37 adopted by this court 242 Ala. xvi).

This is not the case here where the court merely eliminated an element of damages, where the undisputed evidence shows, if the plaintiff was entitled to recover at all, she was entitled to recover, approximately 85 cents per day for four days, aggregating $3.40, for loss of service. So the rule applied in Roll v. Dockery, 219 Ala. 374, 122 So. 630, 631, 65 A.L.R. 1473, "when the verdict is against plaintiff's right of recovery, a ruling of the court upon the admission of evidence, or giving or refusing instructions relating to the amount of recoverable damages, cannot be the basis of reversal. Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428; Wilson Bros. v. Mobile O. R. Co., 208 Ala. 581, 94 So. 721; Brothers v. Norris,209 Ala. 426, 96 So. 328; Orr v. Burleson, 214 Ala. 257,107 So. 825", is applicable here.

In Lunsford v. Dietrich, 85 Ala. 496, 497, 5 So. 355, it was observed:

"The plaintiff in this action sued the defendant (the appellee) for wrongfully destroying certain papers, or plans and specifications for a building, which was in the process of construction by plaintiff in Birmingham, Ala. The defendant claimed that these papers were his property, and not the plaintiff's, and the main issue of fact on the trial seems to have been, which of the parties litigant, the plaintiff or the defendant, were entitled to the ownership of the papers. The jury found a verdict for the defendant, the necessary intendment of which is, that the property in controversy belonged to the defendant, and that he was guilty of no trespass in taking it. The judgment based on this verdict is certainly conclusive of the fact that the plaintiff was entitled to no damages whatever; not even to nominal damages, which necessarily follow the invasion or violation of every legal right, for it is settled that every legal injury must import a damage. Trustees [of Howard College] v. Turner,71 Ala. 429 [46 Amer.Rep. 326]; 3 Brick. Dig. 293, § 1; 1 Suth. Dam. 9.

"In view of the foregoing consideration, it is apparent that the plaintiff could not be entitled to recover for any special damages, incident to the alleged trespass, if there was in fact no trespass committed, or no wrongful act which would justify the recovery of any general damages, even nominal in their character."

Numerous cases are cited to the same effect in 2 Alabama Digest, Appeal and Error, pp. 948-950, 1068 (4).

The "modern rule" adverted to in the majority opinion is that "fiction of loss of service is not essential to an action for the abduction of a child." 72 A.L.R. 848. In one of the leading cases applying that rule it was observed: " 'She [the grandmother of a bastard child] has the right to the custody and control of the child, which came naturally, peaceably, and exclusively into her possession from its mother, if not to the same degree and to the same extent as if it were her own, at least to such a degree as to be entitled to protection against interference by a stranger who shows no higher right. She is entitled to its possession, and, when the defendant unlawfully deprived her of that possession, he was guilty of such a physical invasion of her rights as constitutes an actionable wrong. * * * The law presumes general damages from such a wrong, and the plaintiff says that she is entitled to punitive damages. * * * But in any event the plaintiff is entitled to recover, for the physical invasion of her right of possession as a parent, nominal damages, if no more; and under the allegations of this petition, from which it appears that the violation as alleged is flagrant, the jury would have the right to punish the offender in exemplary damages. * * *' " 72 A.L.R. 849; Selman v. Barnett, 4 Ga. App. 375, 61 S.E. 501.

And the authorities seem to be agreed that when the parent establishes the right to recover damages for the invasion of the parent's rights, even though nominal, damages for mental anguish may be super added. 39 Am.Juris. p. 717-719, §§ 74, 75.

The jury's verdict being against the right of recovery in the face of the undisputed evidence showing loss of service, the rulings of the court eliminating other elements of damages should be pronounced error without injury, and the judgment affirmed.

GARDNER, C. J., concurs.