Alabama Fuel & Iron Co. v. Powaski

• Decision Date: 26 March 1936
• Docket Number: 6 Div. 759
• Citation: 166 So. 782,232 Ala. 66
• Court: Alabama Supreme Court
• Parties: ALABAMA FUEL & IRON CO. v. POWASKI.

166 So. 782

232 Ala. 66

ALABAMA FUEL & IRON CO. v. POWASKI.

6 Div. 759

Supreme Court of Alabama

March 26, 1936

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for damages by Frank Powaski against the Alabama Fuel & Iron Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Benners Burr, McKamy & Forman, of Birmingham, for appellant.

Hugh A Locke and Andrew W. Griffin, both of Birmingham, for appellee.

GARDNER Justice.

Plaintiff recovered a judgment against defendant for assault and battery, from which this appeal is prosecuted.

Touching the merits of the case, defendant vigorously insists that, if plaintiff was assaulted by any of its employees, it was without the line and scope of their employment, and could be attributed solely to gratification of personal resentment or malice, and that the affirmative charge, as requested, was its due.

The applicable rule is well understood. Responsibility of the master for acts of the servant does not arise simply from the circumstance that at the time of the injury the person inflicting it was in the employment of another. The act inflicting the injury must have been done in pursuance of authority, either express or implied. "That is, it must be an act which is fairly incident to the employment, in other words, an act which the master has set in motion." Goodloe v. Memphis, etc., R.R. Co., 107 Ala. 233, 18 So. 166, 167, 29 L.R.A. 729, 54 Am.St.Rep. 67. The master is of course exempt from "liability when the servant or agent steps aside from the scope of his employment and commits a tort for his own personal gratification, and in no manner connected with the accomplishment of the object of his employment." Supreme Lodge Loyal Order of Moose v Kenny, 198 Ala. 332, 73 So. 519, 524, L.R.A.1917C, 469.

The cases noted by defendant (among them, Wells v. Henderson Land & Lumber Co., 200 Ala. 262, 76 So. 28, L.R.A.1918A, 115; Johnson v. Alabama Fuel & Iron Co., 166 Ala. 534, 52 So. 312, 313; Buttrey v. Wilhite, 208 Ala. 573, 94 So. 585; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653; Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516), furnish apt illustrations.

The facts of each particular case must determine. Goodloe v. Memphis & Charleston R.R. Co., supra; St. Louis-San Francisco R. Co. v. Robbins, 219 Ala. 627, 123 So. 12.

The rule was restated in the recent case of Gulf Refining Co. v. McNeel, 228 Ala. 302, 153 So. 231, 234, wherein the following was approvingly quoted from Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674: "If an employee is engaged to perform a certain service, whatever he does to that end, or in furtherance of the employment, is deemed by law to be an act done within the scope of the employment. Gulf, M. & N.R. Co. v. Havard, 217 Ala. 639, 117 So. 223; National Life & Accident Ins. Co. v. Cruso, 216 Ala. 421, 113 So. 396; 39 Corpus Juris 1283. Such conduct, to come within the rule, must not be impelled by motives that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment. Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516. If the conduct was 'committed in the accomplishment of objects within the line of his duties, or in and about the business or duties assigned to him by his employer,' the master is responsible. Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727."

In the instant case, on the facts, we are persuaded a jury question was presented. On the night (about 8 p.m.) of November 4, 1933, some houses in defendant's camp at the Acmar Mines, occupied by the negro employees (referred to as Negro Hill), was fired into by unknown parties; the electric lights being first extinguished. There was much excitement among the 300 or more negroes occupying these houses, and Shepherd, superintendent of the Acmar Mine, temporarily absent at the time, being notified, hastened to the camp. Armed with one of the submachine guns kept on the premises, Shepherd, in company with Luke Ginright, a company deputy, and others employed by defendant, including the mine foreman, started out in search of those guilty of this offense. After making a survey of the situation on "Negro Hill," the searching party, consisting of some twelve or fifteen men in all, and in three cars, traveled down a certain road, and some one and a half or two miles from the scene of the trouble found plaintiff and two others, who had formerly worked for defendant, though not then employed, walking down the road, each with a shotgun. These three were taken into the car and driven to defendant's office, being first relieved of their guns. This was about 10 o'clock that night. Those participating in the search remained around the office, where, in the meanwhile, Bell, defendant's general manager, had arrived. Empty shells found on Negro Hill were brought to the office and compared by Bell with those in the guns of plaintiff and his companions, and Bell also examined their guns, ascertaining they had been freshly fired. Plaintiff and his companions, in the course of time, were taken into the office and questioned.

It is clear that both Shepherd and Bell were well convinced they had the guilty parties, but they considered sufficient proof was then lacking to sustain their conviction or justify further detention. Bell testified: "I told them that I did not have any eye witnesses to their being up there, but we were confident that they did so, but we were going to turn them loose and let them go home, but the camp was wrought up; colored and white people were excited, everybody stirring around, and I would advise them not to take any short cuts, or to go around any of the houses because everybody was then guarding their house and just keep in the middle of the road and go on home. *** They wanted to know about the guns *** and I told him I would keep those guns until we would see what we would do about it." Bell further states that he did not leave the office until some five minutes after plaintiff and his two companions had left, did not see the direction they went, and knew nothing of anything further in connection with any assault until learning of it later.

Prior to this conversation in the office, Bell had also been around in the camp on inspection regarding the trouble, armed with a submachine gun, and a larger portion of the fifteen or twenty men gathered at the office were armed, most, if not all, being of defendant's white employees.

A sharp conflict in the proof here appears. Plaintiff's evidence is to the effect that Bell told them to go down the railroad, and that he was going to put a man behind them to see they went down the railroad. Before leaving the office (about midnight), plaintiff says he was again searched for weapons, and the three then proceeded towards home down the railroad. When they had gotten about one-half or three-quarters of a mile away from the office, the assault was committed. Plaintiff's proof tends to connect several of those at the office with the assault, including Shepherd, present with his submachine gun, aiding and giving encouragement thereto. This Shepherd and the others deny, insisting they went from the office to their homes, knew nothing of such an assault, and of course had no participation therein.

Among the white assailants were some negroes, but their identity is not disclosed, with the exception, possibly, of one negro employee. Whether any of them were from the vicinity of "Negro Hill" is purely a matter of conjecture.

Defendant operates more than one mine. This trouble was at the Acmar Mine, where Shepherd was in charge as superintendent. Bell was defendant's general manager, and had come that night from another mine at Overton, where he was stationed, in answer to the call from Acmar.

We are clear to the view that, in the investigation of this crime and the effort to apprehend the guilty parties, the jury could very reasonably infer that Bell, the general manager, and Shepherd, the superintendent, were acting in the line and scope of their authority. They were on company business, intent on the protection of the company's property and employees, and to preserve order in the camp. It may well be inferred that no matter of mere personal resentment or malice motivated these officials; that these employees had in mind the protection of the property and the orderly procedure of the company's business, and to this end the apprehension of the guilty parties, and perhaps, also, their punishment to prevent a recurrence of such a crime committed against the company's property and its employees. Quite a different situation from that presented in Wells v. Henderson Land & Lumber Co., and Johnson v. Alabama Fuel & Iron Co., supra, upon which defendant places chief reliance. Illustrative of the distinction is the following sentence, taken from the Johnson Case, supra, wherein the court was speaking of Adams, the general manager of defendant's coal mine, and who first confined and afterwards shot and killed plaintiff's intestate: "When he steps wholly aside from his authority, and does an act to gratify personal malignity, or to accomplish another purpose personal to himself and having no relation to the business of the corporation, as, for aught appearing to the contrary, was the case here, the corporate master is no longer responsible." (Italics supplied.)

But defendant insists that, conceding for the sake of argument only the correctness of this conclusion, yet the evidence would not justify its extension beyond the time plaintiff was detained at its office, and that as the assault occurred thereafter, off the premises of defendant, and at an hour...