Avondale Mills v. Bryant

• Decision Date: 25 November 1913
• Citation: 63 So. 932,10 Ala.App. 507
• Parties: AVONDALE MILLS v. BRYANT.
• Court: Alabama Court of Appeals

63 So. 932

10 Ala.App. 507

AVONDALE MILLS v. BRYANT.

Court of Appeals of Alabama

November 25, 1913

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

Action by Rufus P. Bryant against the Avondale Mills. From a judgment for plaintiff for $1,000, defendant appeals. Affirmed.

The following is charge 2: "You are instructed that, where the acts of an employé are willfully and intentionally done without the consent and authorization of the employer, the employé becomes personally liable, and the employer is not liable; and the rule that the employer must answer for the acts of the employé has no application when the employé actually wills and intends the injury, or steps aside from the duties of the employment committed to him and inflicts an independent wrong."

T.A McFarland, of Birmingham, for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

PELHAM, J.

The appellee, a day laborer in the employ of the appellant brought suit and recovered damages against the appellant for an assault and battery alleged to have been committed on him by appellant's foreman, one W.H. Boland, while acting within the line and scope of his authority under his employment. The foreman, Boland, in addition to his duties in that capacity of employment inside the mill, had intrusted to him the superintendence, control, and management of the mill village, where the houses adjacent to the mill owned by the appellant and occupied by the laborers in its employ as tenants were located. The appellee, who had been in the employ of appellant for 6 or 7 years, was the occupant of one of these houses, and moved himself and family from one to another of the houses without the permission of Boland, or notice to him. A short time afterward, while appellee was engaged in his duties as a picker at the mill, he was accosted by Boland and censured for having moved without his permission, and as a direct result of this criticism an altercation followed, in which the foreman, Boland, who was a much younger, larger, and more vigorous man, assaulted and beat the appellee, who was an old man, 62 years of age. The testimony of Boland and the appellee, the only witnesses to the assault, differs as to its extent, nature, and the provocation; but the version given by appellee would make out an entirely unjustifiable assault on him, in which he was roughly treated and right badly beaten by Boland, who according to the testimony of appellee, hit him several severe blows about the face, head, and body with his fist.

No question is raised as to the right of appellee to recover in the form of action in which a recovery is sought, and no assignment of error is directed at the rulings on the pleadings; but the appellant, as the defendant in the court below, after verdict rendered against it, made a motion for a new trial, and assigned separately among other grounds, that the verdict was not sustained by the evidence, and was excessive in amount.

The first point made by appellant's counsel in brief is that punitive damages are not recoverable in the action, and that the court was in error in submitting to the jury the question of awarding punitive damages. It seems to us the authorities conclusive on the holdings of this court are clear and without conflict on this proposition, to the contrary of the contention made by appellant, and that punitive damages are recoverable in an action of this nature for damages for an assault and battery. Mitchell v. Gambill, 140 Ala 317, 37 So. 290; B.R. & E. Co. v. Baird, 130 Ala. 334, 356, 30 So. 456, 54 L.R.A. 752, 89 Am.St.Rep. 43; Kress v. Lawrence, 158 Ala. 652, 47 So. 574; Jefferson Co. Savings Bank v. Eborn, 84 Ala. 529, 4 So. 386; A.G.S.R.R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am.St.Rep. 28; M. & O.R.R. Co. v. Seales, 100 Ala. 368, 13 So. 917; H. Ave. & B.R. R. Co. v. Robinson, 125 Ala. 484, 28 So. 28

.

It is insisted that the verdict of $1,000 is excessive; but we do not think this verdict, in the light of the evidence, and taking into consideration that the jury had the right to assess punitive as well as compensatory damages, can clearly be said to be grossly excessive, or that the amount assessed indicates passion, prejudice, or other improper motive in ascertaining and fixing such an amount. In the case of B.R. & E. Co. v. Baird, supra, a verdict of $2,500 was held by our Supreme Court not to be excessive damages when assessed against an employer for a simple assault and battery committed by an employé. The assault could not be said to be more serious in its nature or extent, or committed on less provocation, in that case than in this, if the appellee's testimony is to be credited--and it is evident from the finding of the jury that they did believe his testimony. And, too, when the question of damages is limited and bound by no hard and fast fixed rule, but is a matter in the discretion of the jury, and the trial court has refused to disturb the verdict on the ground that it is excessive, an appellate court should use great caution and be very reluctant to exercise the discretion with which it is vested in such matters, and substitute its judgment for the finding of the jury and the judgment of the trial court. C. of G. Ry. Co. v. White, 175 Ala. 60, 56 So. 574; Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501.

It is further urged by appellant's counsel in brief that only compensatory damages could be assessed in this action, unless it be shown that the master or employer authorized the act of the servant or employé, or ratified it, or was guilty of some "gross negligence" in the selection of the servant. This is not the rule in this state, for, while the form of the action is in case (opinion of Justice Head in So Bell, etc., Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930; A.G.S.R.R. Co. v. Hanbury, 161 Ala. 358, 372, 49 So. 467), the cause of action is a trespass, for a wanton or intentional...