[Birmingham Railway, Light & Power Co. v. Nolan.] SHARPE, J.-If it be assumed that the parties in interest who were not notified of the probate proceedings would have been entitled to have the judgment of probate set aside on timely application, still laches plainly imputable to appellant must prevail against his appli- . cation. A third of a century is ordinarily sufficient to obscure a transaction such as the making of a will, and to make it difficult if not impossible to prove the contents of a lost will. A reproduction now of the evidence on which the contents of the will was established and the judgment was rendered in 1865, might be impracticable, and hence to set aside the judgment and open the way to a contest of the will, would be at the imminent risk of allowing the appellant an advantage from his own unreasonable delay. Affirmed. Birmingham Railway, Light & Power Co. v. Nolan, Action by Passenger against Common Carrier to recover Damages for being carried beyond Destination. 1. Action against common carrier; when punitive damages will be awarded.-In an action by a passenger against a common carrier to recover damages for being carried beyond her destination, the evidence for the plaintiff tended to show that when she paid the conductor her fare she told him that she wished to get off at a certain designated station, to which e conductor replied "all right;" that when the train reached her destination the bell was pulled by another passenger at her request, and the conductor was told that the plaintiff desired to get off, that thereupon the conductor replied that the plaintiff would have to go to the next station, and then gave the signal to the engineer to go ahead, which he did, and plaintiff was carried three-quarters of a mile from her place of destination; that she there got off and had to walk back through the wind and cold, when the ground was wet and sloppy from snow; that as a result she was made sick and had been in bad health ever since. The evidence for the de [Birmingham Railway, Light & Power Co. v. Nolan.] fendant tended to show that the conductor did not undertake to put the plaintiff off at the place designated as her point of destination; that said designated place had been discontinued as a station on the road, but there was no evidence that plaintiff knew that fact. The evidence also showed that the conductor had authority to stop the train at any station. Held: That under such evidence, apart from the charge of wantonness or willfulness as made in the complaint, it was open to the jury to infer gross negligence on the part of the conductor, which would authorize the awarding of punitive damages; and that, therefore, charges requested by the defendant which instructed the jury that they could not award punitive damages, were erroneous and properly refused. 2. Same; excessive damages.-In such a case, the awarding plaintiff one hundred and fifty dollars damages can not be said to pe excessive. APPEAL from the City Court of Bessemer. Tried before the Hon. B. C. JONES. This action was brought by the appellee, Mrs. Alpha Nolan, against the Birmingham Railway, Light & Power Co., to recover damages sustained by the plaintiff as the result of being carried beyond her destination while riding on one of the defendant's cars and being put off at another station, and in failing and refusing to put the plaintiff off where she had notified the conductor she wanted to get off. The facts of the case are sufficiently stated in the opinion. The substance of the charges requested by the defendant, to the refusal to give each of which the defendant separately excepted, are set forth in the opinion. There were verdict and judgment for the plaintiff, assessing her damages at $150. The defendant made a motion for a new trial, upon the ground, among others, that the damages awarded were excessive. This motion was overuled, and the defendant excepted. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. WALKER, TILLMAN, CAMPBELL & PORTER, for appellant, cited L. & N. R. R. Co. r. Quick, 125 Ala. 553. [Birmingham Railway, Light & Power Co. v. Nolan.] ESTES & SMITH, contra, cited Parker v. Wise, 27 Ala. 480; W. U. Tel. Co. v. Henderson, 89 Ala. 510; A. G. S. R. R. Co. v. Huddleston, 82 Ala. 218; 1 Sutherland on Damages, 734. HARALSON, J.-The complaint contained besides counts for simple negligence, one for having recklessly, willfully or wantonly, refused to put plaintiff off at 25th street in Bessemer, to which point she had paid her fare, and where the conductor, at the time she paid it to him, agreed to put her off. The case was tried on the plea of the general issue. The proof, on the plaintiff's part, tended to show that she paid the conductor her fare to her destination,25th street, and when she paid it, she told him that she desired to get off at that street, and he said "All right;" that the train did not stop to let her off, when it reached her destination, but the bell cord was pulled by a gentleman for plaintiff, which attracted the attention of the conductor, who was told that the plaintiff desired to get off, and he replied, that "The train does not stop at 25th street, and the lady will have to go to the next station," and thereupon, he gave the signal to the engineer to go ahead, which he did, and plaintiff was carried to Woodward's crossing,-about three-quarters of a mile from 25th street,-where she got off and had to walk back; that it was windy and cold, and the ground was wet and sloppy from snow that had fallen; that she got her feet wet and was taken sick, and has been sick nearly ever since, and that she required the attention of a physician, who paid her several visits. The evidence of the defendant tended to show that the conductor did not undertake to put plaintiff off at 25th street, when she paid him her fare, and that he was not guilty of reckless or wanton conduct in the matter; that 25th street had been, for a year or more, discontinued as a stopping place or station on the road, but there was no evidence that plaintiff knew that fact. The conductor testified that he had authority, as conconductor, to stop a train at any station. [Birmingham Railway, Light & Power Co. v. Nolan.] Errors are assigned alone for the refusal to give the charges requested by defendant. The court was requested by the defendant to charge the jury that they could not award punitive damages in the case; that they could award no more than nominal damages, and that if they believed the evidence, they must find for the defendant. To authorize punitive damages, the act complained of must be willful, or the result of reckless indifference to the rights of others, which is equivalent to an intentional violation of them, or "where the injury has been wanton, or malicious, or gross."-Wilkinson v. Searcy, 76 Ala. 181. It is settled that the infliction of actual damage is. not essential to the imposition of exemplary damages. A. G. S. R. R. Co. v. Sellers, 93 Ala. 9. If, then, in this case, the negligence of the conductor was so gross as to evince an entire want of care, and was sufficient in the minds of the jury to raise the inference that being cognizant of the probable consequences, he was indifferent to them, it was in their province to award exemplary damages.-A. G. S. R. R. Co. v. Arnold, 80 Ala. 601. We must hold, that under the evidence, apart from the charge of wantonness or willfulness, it was open to the jury to infer gross negligence on the part of the conductor. The court was not authorized, therefore, to take this question from them. There was no error in refusing the charges requested by defendant. A motion was made for a new trial on the ground, among others, that the damages awarded were excessive. It was refused. We do not feel authorized, under the facts of the case, to set the judgment aside on that ground. Affirmed. [Troy Fertilizer Co. v. The State.] 134 333 136 461 Troy Fertilizer Co. v. The State. Action to recover Privilege Tax. 1. Privilege tax; corporation manufacturing commercial ferti lizer uable therefor.-A corporation engaged in the business of manufacturing and selling commercial fertilizer, cotton seed oil, cotton seed meal, etc., is liable for the privilege tax imposed by subdivision 55 of section 4122 of the Code, although it has paid the license tax required by section 376, and had also paid the tag tax required by section 386 of the Code. 2. Pleading and practice; when pleas should not be stricken on motion.-Pleas should not be stricken on motion, unless they are unnecessarily prolix, irrelevant or frivolous (Code, § 6); and if not subject to either of these objections, the plaintiff should be put to demurrer and his motion to strike should be overruled. 3. Same; when sustaining motion to strike pleas not error without injury.-Where special pleas are neither unnecessarily prolix, irrelevant nor frivolous, the sustaining of a motion to strike such pleas is not error without injury, even though they set up no valid defense to the maintenance of the action; since the plaintiff should be put to a demurrer to point out objections to such pleas, in order that the defendant should have an opportunity to amend if he saw fit to do so. APPEAL from the Circuit Court of Pike. Tried before the Hon. JOHN C. ANDERSON. This action was brought by the State of Alabama against the Troy Fertilizer Co. to recover of the defendant the privilege tax of seventy-five dollars for each of the years 1897, 1898 and 1899, which was alleged not to have been paid by the defendant corporation as required by law. The defendant pleaded the general issue and five special pleas. The substance of the 2d, 3d and 4th special pleas is sufficiently stated in the opinion. By the 5th and 6th pleas the defendant set up the unconstitutionality of subdivision 55 of section. 4122 of the Code, under which the present suit was brought. The plaintiff moved to strike each of the spe 137 184 |