Alabama Great Southern R. Co. v. Pouncey

• Decision Date: 13 February 1913
• Citation: Alabama Great Southern R. Co. v. Pouncey, 7 Ala. App. 548, 61 So. 601 (Ala. App. 1913)
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. POUNCEY.
• Court: Alabama Court of Appeals

61 So. 601

7 Ala.App. 548

ALABAMA GREAT SOUTHERN R. CO. v. POUNCEY.

Court of Appeals of Alabama

February 13, 1913

On Application for Rehearing, April 8, 1913

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Cobb Pouncey against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

A.G. & E.D. Smith, of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

WALKER, P.J.

The single count of the complaint in this case, after averring in effect, that at the time of the commission of the alleged wrong complained of the plaintiff was a passenger on a train of the defendant, averred that "defendant's servant or agent on said train used towards plaintiff abusive or insulting language, and as a proximate consequence thereof plaintiff was greatly humiliated," etc. The court overruled the defendant's demurrer to the complaint which assigned, among other grounds, "that said complaint fails to allege or show that the servant mentioned in said complaint was acting within the line and scope of his authority." We are unable to escape the conclusion that this ground of demurrer pointed out a material deficiency in the complaint.

The rule under which very general averments of a breach by the defendant of a duty owing by him to the plaintiff, amounting to hardly more than the statement of the pleader's conclusion in that regard, are treated as sufficient, when the averments of the complaint show the existence of such duty (Birmingham Ry., L. & P. Co. v McCurdy, 172 Ala. 488, 55 So. 616), cannot be availed of by a plaintiff to excuse a failure on his part to show by appropriate averments that what he complains of was done or omitted by the defendant, or by some one for whose acts or defaults the defendant is legally chargeable. The objection raised by the quoted ground of demurrer is not aimed at the generality of the averment of wrongful conduct complained of, but at the failure of the complaint to show that the person guilty of the wrong bore any such relation to the defendant as to render the latter liable for his alleged misconduct. So far as the complaint shows the existence of any relation between the defendant and the person whose wrongful conduct is alleged, its averments would be sustained by evidence of that person's being an agent or servant of the defendant who was on said train at the time referred to, though he had been intrusted by the defendant with no duty in reference to that train or the safeguarding of the passengers thereon, though his employment by the defendant was for service to be rendered in a wholly different branch of its business, disassociated from the performance of any duty owing by the carrier to a passenger, and though his presence on the train at that time was in violation of the rules or express orders of the defendant. For anything that appears in the complaint, the performance of all duties or functions pertaining to the service for which the agent or servant referred to in the complaint had been employed by the defendant may have been completely suspended so long as he was on that train. He may not have been at that time engaged in any way in the business of his employer.

The mere fact of the existence of the relation of principal and agent is not enough, under the law, to impose upon the principal liability for whatever tort the agent may commit while the relation exists. Under the doctrine of respondeat superior the liability of the principal for the torts of his agent does not extend to wrongs committed by the agent while he is acting wholly outside of the general range or scope of his employment, and is no longer in any way or sense engaged in performing the service for which he had been employed, or to which he had been assigned. Henderson-Mizell Mercantile Co. v. Chapman & Co., 3 Ala.App. 296, 57 So. 82; 4 Elliott on Railroads,§ 1638.

In the opinion rendered in the case of Louisville & Nashville R Co. v. Johnson, 162 Ala. 665, 50 So. 300, it was distinctly recognized that when a principal is sought to be charged with liability for a tort committed by his agent it is incumbent upon the plaintiff to show by the averments of his complaint that the act or omission complained of occurred under such circumstances as to render the defendant, as the principal or employer, liable for it, though it was also recognized that "there are no patented words for charging the misconduct imputed to have been committed or omitted 'within the scope of the servant's employment,"' and that it is sufficient if the averments of the complaint, read as a whole, show that the agent, when committing the wrong bore such a relation to the defendant as to render the latter liable for the misconduct complained of. The wrong complained of in the case at bar is similar to the one which was the subject of complaint in the case of Lampkin v. Louisville & Nashville R. Co., 106 Ala. 287, 17 So. 448. It was held that the complaint in that case was not subject to such an objection as the one raised by the ground of demurrer above mentioned; the court saying: ...