motion to dismiss this appeal must be sus- SIMPSON, MCCLELLAN, and MAYFIELD, put the time in November, inasmuch as he The trial court did not err in refusing to is affirmed. Affirmed. (164 Ala. 23) BIRMINGHAM RY., LIGHT & POWER CO. v. WEATHERS. (Supreme Court of Alabama. Dec. 16, 1909.) 1. PLEADING (8 34*) - PRINCIPLES OF CON STRUCTION. A complaint will be construed most strongly against plaintiff, as he is presumed to state his facts in the most favorable aspect of which they are capable. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*] 2. PLEADING (§ 34*) - CONSTRUCTION - COMPLAINT NEGLIGENCE. The sufficiency of a complaint, in an action for personal injuries, which undertakes to define the particular negligence which caused the injury, must be tested by the special allegations in that respect, though the general allegation of negligence would, in the absence of such special allegations, be sufficient to state a prima facie case of negligence. Cent. Dig. § 68; Dec. Dig. § 34.*] 3. CARRIERS (§ 314*)-INJURY TO PASSENGER- A complaint alleging that, while plaintiff SIMPSON, MCCLELLAN, and MAYFIELD, was a passenger on defendant's car, "said car JJ., concur. (164 Ala. 598) CITY OF BIRMINGHAM v. RIDGWAY. (Supreme Court of Alabama. Dec. 16, 1909.) The record, on appeal by the city from a judgment for defendant on prosecution for violation of an ordinance, should show the trial court held the ordinance invalid; Code 1907, § 1220, giving the city the right of appeal only where the validity of the ordinance is involved. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 642.*] Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge. J. T. Ridgway was acquitted on a prosecution by the city of Birmingham for violation of an ordinance, and the city appeals. Dismissed. J. Q. Smith, for appellant. M. M. Ullman, for appellee. * started or jerked, or the speed thereof was suddenly increased, and as a proximate consequence thereof plaintiff was thrown or caused to fall or struck on or against said car or some hard substance therein, and was made sick and sore: * * that he was thrown or caused to fall or be struck as aforesaid, and to suffer said injuries and damage by reason and as the consequence of the negligence of defendant in or about carrying plaintiff as defendant's passenger," is insufficient to state a cause of action, as it does not allege that defendant or its agents were guilty of negligence. [Ed. Note.--For other cases, see Carriers, Cent. Dig. §§ 1273-1280; Dec. Dig. § 314.*] 4. PLEADING (§ 218*)-DEMURRER-JUDGMENT -CONSTRUCTION. The recital in a judgment that defendant filed its demurrer to the complaint, and that "said demurrers be and they are hereby dismissed," does not change the fact, shown by the record, that the demurrer was addressed to each count in the complaint separately, and not to the complaint as a whole. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 218.*] Denson and McClellan, JJ., dissenting. Appeal from City Court of Birmingham; Charles A. Senn, Judge. Action by T. S. Weathers against the Birmingham Railway, Light & Power Company for injuries received while a passenger. Plaintiff had judgment, and defendant appeals. Reversed. ANDERSON, J. While section 1220 of the Code of 1907 gives the defendant the right of appeal in any case, the city is given the right of appeal only in cases where the validity of the ordinance is involved. There is nothing in the record that would indicate that the ordinance in question was held invalid by the trial court, and the appellee's The count considered in the opinion is as follows: "The plaintiff claims of the defendant sev en thousand five hundred dollars as damages, | duty to act springs, and that the defendant for that heretofore, to wit, on the 8th day negligently failed to do and perform, etc. It of May, 1906, defendant was a common car- is not necessary to define the quo modo, or rier of passengers for hire and reward, by to specify the particular acts of diligence means of a car operated by electricity, in he should have employed in the performance Birmingham, Alabama; that on said day of such duty. What the defendant did, and plaintiff boarded said car as defendant's how he did it, and what he failed to do, are passenger, and became defendant's passenger generally better known to the defendant than on said car, and while plaintiff was upon to the plaintiff; and hence it is that, in such said car, and was defendant's passenger cases, a general form of averment is suffithereon, said car started or jerked, or the cient. In the numerous cases in which this speed thereof was suddenly increased, and question has been raised the rule quoted as a proximate consequence thereof plain- from Leach v. Bush has unquestionably been tiff was thrown or caused to fall or struck accepted as meaning that most general alupon or against said car or some hard sub-legations of negligence, amounting to conclustance therein, and was made sore and sick, and was crippled and disfigured, his leg was bruised, mashed, and an ulcer was caused thereon, and plaintiff was confined to his house for a long time, and was caused to go on crutches for a long time, was rendered for a long time unable to work and earn money, his health and physical stamina were greatly and permanently injured, plaintiff suffered great mental and physical pain, and was put to great trouble, inconvenience, and expense for medicine, medical attention, care, and nursing in or about his efforts to heal and cure his said wounds and injuries. Plaintiff alleges that he was thrown or caused to fall or be struck as aforesaid, and to suffer said injuries and damage, by reason and as a proximate consequence of the negligence of defendant in or about carrying plaintiff as defendant's passenger as aforesaid. "(2) Plaintiff refers to and adopts all the words and figures of the first count, from the beginning thereof, to and including the words 'heal and cure his said wounds and injuries,' where they first occur together in said count. Plaintiff adds thereto the following words of averment: Defendant's servant or agent, acting within the line and scope of his authority as such, in charge or control of said car, wantonly or intentionally caused plaintiff to suffer said injuries and damage as aforesaid." Tillman, Grubb, Bradley & Morrow, for appellant. Bowman, Harsh & Beddow, for appellee. SAYRE, J. In an opinion handed down on a day of the last term we indicated our opinion that the demurrer to the complaint should have been sustained. Counsel for the appellee complains strenuously of that judgment, and we, having in mind the rights of the parties, have been willing to reconsider the question involved, and have done so. In a long line of cases to be traced back through a hundred volumes of our Reports to Leach v. Bush, 57 Ala. 145, it has been held that, when the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient if sions only, may be received as meeting the requirements of our system of pleading; but it has not been understood to dispense with a categorical averment that the defendant was guilty of negligence. The burden of allegation has generally been discharged by an allegation that the defendant negligently did or failed to do thus and so. In L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 South. 902, which was a suit by a passenger, it was held sufficient to allege that the defendant so neg. ligently and unskillfully conducted itself in carrying a passenger, and in conducting, managing, and directing the coach upon which plaintiff was, that the coach was derailed, to the injury of plaintiff. In Armstrong v. Montgomery Street Railway, 123 Ala. 233, 26 South. 349, it was held, in a case of the same character, that an averment that the defendant so negligently conducted its business of carrying passengers that by reason of such negligence plaintiff received injury sufficiently stated a cause of action. Not until the case of Birmingham Ry., L. & P. Co. v. Adams, 146 Ala. 267, 40 South. 385, 119 Am. St. Rep. 27, so far as we are informed, was approval given to a complaint in this form, viz. (after allegation that plaintiff was injured while a passenger): Plaintiff avers that said injury was proximately caused by the negligence of the defendant's servants in and about the carriage of the plaintiff as a passenger. Similar complaints have been sustained in L. & N. R. R. Co. v. Church, 155 Ala. 329, 46 South. 457, and Birmingham Ry., L. & P. Co. v. Haggard, 155 Ala. 343, 46 South. 519, and doubtless in other late cases which we have not at hand just now. We mention this form of latest adoption, not to dissent from its use in ordinary cases as a sensible and practicable averment of negligence, though it may be said in strictness that it contains no categorical allegation of negligence, but simply to note that it marks the limit of permissible generality in averment. Nor need we discuss the idea that such exceeding great generality of averment expedites or facilitates the equal administration of justice. It seems to have become fixed in our system of pleading, and we anticipate no radical departure from it, have said is incidental to another proposi- | stated that he was of the same opinion. The tion to which we are leading, which is that the complaint is defective under a rule of pleading which is that the sufficiency of a pleading, which undertakes to go into particulars, must be judged by reference to those particulars. complaint in the case at bar avers in its fore part that while plaintiff was a passenger upon defendant's car "said car started or jerked, or the speed thereof was suddenly increased, and as a proximate consequence thereof plaintiff was thrown or caused to fall or struck upon or against said car or some hard substance therein, and was made sick and sore," etc. Then, after describing his injuries, the complaint concludes: "Plaintiff alleges that he was thrown or caused to fall or be struck as aforesaid, and to suffer said injuries and damage, by reason and as a consequence of the negligence of defendant in or about carrying plaintiff as defendant's passenger." "Sudden jerk" cases are sui generis in one respect: Proof of a passenger's injury by a sudden jerk does not make out a case against the carrier. It is necessary that something more be shown. There can be no sort of doubt that plaintiff intended to state a case of injury by sudden jerk. That the "car started or jerked or the speed thereof was suddenly increased" is not alleged as descriptive of what happened to plaintiff, but of what was done by the defendant. In passing it may be observed that there is nowhere in the complaint a categorical averment that the defendant or its agents were guilty of negligence. At best that charge is made by way of inference only. But, to pass that over, we are now re In Birmingham Ry., L. & P. Co. v. Parker, 156 Ala. 251, 47 South. 138, this court had under consideration a complaint by a passenger in which he charged that the car, upon which he was being carried, "was started or jerked, or the speed thereof suddenly increased, and as a proximate consequence plaintiff was thrown," etc. This was taken to be a statement of the quo modo of defendant's negligence. The complaint in that case concluded as follows: "Plaintiff alleges that said car started or was jerked, or the speed thereof was suddenly increased, while she was waiting to alight therefrom or engaged in or about alighting therefrom as aforesaid, by reason and as a proximate consequence of the negligence of defendant in or about carrying plaintiff as its passenger aforesaid." It was pointed out that the particulars of the negligence alleged in the fore part of the complaint fell short of averment of a cause of action, for that, whereas, not every sudden jerk of a car upon which a passenger is being carried is negligent, because sudden jerks may be necessarily incident to the starting and movement of cars (H. A. & B. R. R. Co. v. Miller, 120 Ala. 535, 24 South.quested to remember that a car cannot be 955), the complaint averred nothing more, in effect, than that there had been a sudden jerk of the car upon which plaintiff was a passenger. Whether a sudden jerk-which really means a jerk only, its culpability depending upon the degree of violence present constitutes negligence, depends upon attendant circumstances, examples of which are stated in the opinion in the Parker Case, and which must be alleged with particularity, or covered by a general allegation that the act done was negligently done. The last method was followed in the Miller Case, supra, where it was held that the averment of a count that "the engineer of said engine negligently caused or allowed said car and engine to be suddenly and violently shocked as aforesaid" sufficiently alleged a cause of action. In the Parker Case the opinion shows that this court attributed to the words "as aforesaid," with which the complaint there concluded, the effect of putting the particular facts alleged in the fore part of the complaint in apposition to the general concluding averment of negligence, and held the one to be the legal equivalent of the other, and both to be deficient in the statement of necessary fact. In the case at hand we at first took the complaint to be a substantial copy of the complaint in the Parker Case, except for the omission of the appendix "as aforesaid." And the appellee, speaking through counsel, negligent, that a person only can be negligent, and that the averment of the complaint that "said car started or jerked, or the speed thereof was suddenly increased," performs in this complaint the office of identifying the means by which the defendant's negligence, whatever it was, operated upon the person of the plaintiff to inflict the injury. Some such remembrance as that induced us to suppose that the averment in question was intended to signify to the common and undistorted apprehension of the court that the car started or jerked as the result of an act done by the defendant or its employé while operating the car. Upon some such theory, also, we understood that, when the plaintiff charged that his being made sick and sore was a proximate consequence of the car's starting, he did not intend merely to charge that the starting of the car was only a link in the chain of causation through which some unmentioned negligence of the defendant, as, for example, some defect in appliances, reached to the plaintiff, but that he meant that the starting of the car suddenly was the cause, in a legal sense and as the court was going to deal with it, of his being sick and sore; in other words, that the sudden jerk and its consequence were stated as the plaintiff's cause of action. There is no suggestion of an antecedent and more remote cause. The complaint invites the court to consider a starting of the car suddenly-nothing more. The sudden start is then averred to have caused plaintiff's inJury. A moment later the negligence of the defendant is averred to have caused his injury. rectly state the law, as was shown in the Miller Case, supra. There are others of the same import. We therefore conclude again that there was error in overruling the demur. rer interposed to the first count of the complaint. We are still of the opinion that, construing the count most strongly against the pleader, There was no demurrer to the complaint as we must do, because presumptively he as a whole, but to each count thereof severalstated his facts in the most favorable aspectly and separately. The judgment, after reof which they were capable, and yet construing it fairly, and without wringing the language used out of its ordinary meaning and common acceptation-we still think that the conclusion of the count means that the facts already alleged in its fore part constitute negligence, and that by reason and as a consequence of them, and nothing besides, plaintiff suffered his injuries, and that such must be taken to have been the intention of the pleader. That conclusion of the count is without authority of law. citing that the defendant refiled its demurrer to the complaint, was that "said demurrers be and they are hereby overruled." The recital did not change the fact, shown by the record, that the demurrer was addressed to each count severally and separately, and not to the complaint as a whole. We must construe the judgment of the court as responsive to the issue. So construed, it means that the demurrer to count 1 was overruled. Reversed and remanded. DOWDELL, C. J., and SIMPSON, ANDERSON, and MAYFIELD, JJ., concur. DENSON and MCCLELLAN, JJ., dissent. (164 Ala. 155) We may say that we are not disposed to exaggerate the difficulties of the system of pleading which has prevailed in this state for many years, nor to divide too nicely between north and northwest side. We did not create this system, nor are we empowered to destroy it. We can only take care, as far as may be, that its faults be not further accentuated. It is true that a suitor may state his cause of action in such general terms as hardly to give intimation of what he expects to prove; and he may state with particularity the facts essential to his case in other counts of the complaint. And since, under the general count, he may prove any case permitting recovery, it may seem immaterial what is stated in the special counts. So here the appellee suggests that, since he might prove any case allowing a passenger to recover under the general conclusion of his count, it is quite absurd to bother about any degree or lack of particularity in other parts of the count. But the rule has long prevailed, and in itself considered it seems to be a rule of reason, as well as a survival of times when a plaintiff was required to inform defendant of the nature of his grievance, that the sufficiency of a complaint, in an action for personal injuries, which under-ty; A. O. Lane, Judge. takes to define the particular negligence which caused the injury, must be tested by the special allegations in that respect, although the general allegation of negligence would, in the absence of such special allegations, be sufficient to make a prima facie case of negligence. Birmingham O. & M. Co. v. Grover, 48 South. 682. LOUISVILLE & N. R. CO. v. STREET. (Supreme Court of Alabama. Dec. 16, 1909. On Rehearing, 1910.) 1. DEATH (§ 106*)-REVIEW-PUNITIVE DAMAGES WRONGFUL DEATH. Code 1907, § 2486, giving a personal representative an action for such damages as "the jury" may assess for wrongful death, if decedent could have maintained an action for such wrongful act, had it not caused death, provides for a recovery of punitive damages only; the amount resting in the discretion of the jury, whose verdict is not subject to review by the trial court for inadequacy. [Ed. Note.-For other cases, see Death, Cent. Dig. § 151; Dec. Dig. § 106.*] The necessity for the rule that particulars alleged must state a cause of action becomes further apparent when it comes to instructing the jury. The plaintiff has a right to have the jury charged that he is entitled to recover on a hypothesis of facts found as stated in the language of the complaint. But such a charge in this case would not cor 2. CONSTITUTIONAL LAW (§ 105*)—PUNITIVE DAMAGES. A person is without legal right to punitive damages, as that right attaches to actual damages suffered, and they may be affirmatively withheld by the Legislature so far as impinging rights of property are concerned. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 228-235; Dec. Dig. § 105.*] Appeal from Circuit Court, Jefferson Coun Action by Barbara Street, administratrix, against the Louisville & Nashville Railroad Company. Judgment for plaintiff for nominal damages. From an order granting a new trial, defendant appeals. Reversed and rendered. Tillman, Grubb, Bradley & Morrow, for appellant. Gaston & Pettus, for appellee. MCCLELLAN, J. This appeal, from an order granting a new trial of an action possible, alone, by virtue of the provisions of the homicide act (Code 1907, § 2486), and in which the jury awarded one cent damages, presents the inquiry whether a trial court may review and revise the amount of the jury's verdict, where, under the cited statute, | Of course, our books abound in cases where the damages are punitive purely, and the this court reviewed the action of trial courts amount to be assessed is left to the discre- instructing juries that punitive damages tion of the jury-such damages "as the jury might or might not be awarded by the jury may assess." This statute has become fix in the given case. But this is an entirely ed in this construction and effect, viz., that different matter from revising the jury's the recovery provided is punitive only. R. judgment merely in the sum assessed, upon & D. R. R. Co. v. Freeman, 97 Ala. 289, 11 the ground of inadequacy. The statute comSouth. 800, among others cited in the anno- mits the ascertainment of the amount to the tations to the statute. Being of that class jury's discretion. In dealing with new trials, of damages, the plaintiff is without legal granted or refused, on the ground of excessright to them, as that right attaches to ac-iveness of punitive damages stated in the vertual damages suffered. Comer v. Age-Her-dict, the test has been often found in the inald Pub. Co., 151 Ala. 613, 44 South. 673, quiry, whether the verdict was the result of 13 L. R. A. (N. S.) 525. Such damages may passion, prejudice or oppression. If so, an be even forbidden, or affirmatively with- order for new trial should be entered. No held, by legislative enactment, so far as such cause could affect the alleged inadeimpinging rights of property are concern- quateness of the punitive damages assessed, ed. In short, such damages, until a vested for the reason that no right of the movant, property right attaches to them through a | aside from the right that the jury ascertain, judgment rendered in a party's favor, are in their discretion, the sum to be assessed as not properly within the protection of Consti- a punishment, was subject to the influence of tutions. The chief argument in support of the right of review and revision here undertaken, on adverse passion or prejudice, or was the result of a desire to oppress. Appellee's coun sel cite a number of decisions of this court in support of the proposition that the power of review and revision, on the ground of the inadequacy of the damages assessed in the verdict, exists at nisi prius. There can be no doubt of the soundness of that proposition when actual damages are inadequately assessed. Of this school of cases may be noted the ground of inadequacy of the sum assessed in this verdict, is that the right of review and revision of verdicts on the ground of excessiveness is universally admitted, and, proceeding from this as a premise, counsel for appellee put their argument in its strongest possible form when they say: "It is a poor rule that will not work both ways." At first blush, the argument appears sound, and to conclude to impartiality and fair-erty was the basis of recoverable damages, ness. But maturer consideration discovers 108, where trespass to real and personal prop Hardeman v. Williams, 157 Ala. 422, 48 South. and one cent was awarded. It is not held, in that case, that the sum assessed was in or elsewhere. its vice. That vice lies in the assumption adequate, because the jury should have, in that the right of the defendant, who com- their discretion, awarded punitive damages; plains against an excessive verdict for puni- much less that, if such damages were awardtive damages, is the like and same charac-ed, the sum could be revised in the trial court ter of right of a plaintiff who sought only to recover punitive damages. As to the former, We think the principle, followed to its lethe defendant, to discharge the judgment, to gitimate effect and result, forbids the review follow the verdict, must respond in a sum and revision of a verdict, given in an action in excess of that a proper exercise of the under the homicide statute, on the sole ground discretion would have fixed as punitive; in of the inadequacy of the sum assessed, that the latter, the plaintiff's complaint involves could only be, and was, we must assume, so no property to which he is, through the equiv- assessed, as the jury's idea of the punishalent in damages, entitled. In the former, ment due the wrongdoer. Of course, and peran obligation, a liability, is fixed; in the lat-haps it is unnecessary to state it, we have ter, the beneficiary is such, alone, because dealt only with the right of revision of verthe statute intends, primarily, the punish-dicts in respect of punitive damages, and have ment of the offender whose wrongfulness not assumed to treat or doubt the inherent has taken human life. In the former, the right of trial courts to purge their records of estate of the wrongdoer is diminished; in verdicts rendered by juries guilty of misconthe latter, the sum recovered is not an as- duct usually avoiding the conclusion set forth set of the decedent's estate, not subject to in the verdicts. The order granting the new his debts or liabilities, and so notwithstand- trial is reversed, and judgment will be here ing the sum recovered is distributable in ac-entered overruling the motion for a new trial. cordance with our statutes of distribution. The case, then, is one where the amount of the damages (purely punitive) is left to the discretion of the jury. The exercise of this discretion by the jury has never been, so far as we are advised, the subject of review and revision by trial courts, even where Reversed and rendered. DOWDELL, C. J., and SIMPSON and MAYFIELD, JJ., concur. On Rehearing. PER CURIAM. In asserted support of the |