Central Foundry Co. v. Laird

• Decision Date: 07 November 1914
• Docket Number: 875
• Citation: 189 Ala. 584,66 So. 571
• Parties: CENTRAL FOUNDRY CO. v. LAIRD.
• Court: Alabama Supreme Court

66 So. 571

189 Ala. 584

CENTRAL FOUNDRY CO. v. LAIRD.

No. 875

Supreme Court of Alabama

November 7, 1914

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by W.F. Laird against the Central Foundry Company, for damages for an assault and battery. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals. Affirmed.

Count 2 alleges that plaintiff was employed in working for defendant as an apprentice under the duties of his said employment, and that one John C. Acton was also an employer of defendant, and had superintendence of plaintiff and of the work in and about which he was engaged at the said time and place, and then and there, while in the exercise of such superintendence, and while acting within the line and scope of his employment said Acton committed an assault and battery upon plaintiff. Counts 3 and 4 state the same cause of action, but in somewhat varying phraseology. The original complaint was against the Central Foundry Company, and the amendment added the word "the" before the words "Central Foundry Company." The plea sets up that there was no such corporation as Central Foundry Company.

The following charges were refused to the defendant:

"(5) I charge you that if you believe from the evidence that there existed no such corporation as Central Foundry Company, then your verdict should be for defendant.

"(6) If you believe from the evidence in this case that in committing this assault on Laird, Acton was acting on account of some personal ill feeling against Laird, then your verdict should be for defendant.

"(7) If you believe from the evidence that at the time of the alleged assault Laird was engaged in work of his own and not for defendant, and that the difficulty arose between Laird and Acton about such work, then Acton was not acting in the line or scope of his employment as master mechanic of defendant, and defendant would not be liable in this action for this assault."

Ben G Perry and C.G. Mims, both of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

McCLELLAN J.

This is an action for damages for an assault and battery alleged to have been committed by an employé of the defendant (appellant) while acting within the line and scope of his employment. The evidence was taken under the issues made by counts 2, 3, and 4. All of these counts were manifestly sufficient, not subject to demurrer. The judgment for plaintiff was for $100 damages. Counts 2 and 3 aver that at the time of the wrong complained of the plaintiff, Laird, was then engaged in the performance of his, Laird's, duties to the common master. The testimony of the plaintiff himself, and that of other witnesses introduced by him, affirmatively disprove the just stated averment common to counts 2 and 3. Had the affirmative charges, requested by defendant, as against counts 2 and 3, been in proper form, it would have been error to refuse them.

These charges required the jury to find for the defendant on counts 2 and 3; thereby bearing the quality to mislead the jury to the conclusion that a special finding was required on two of the three counts under which the evidence was taken. It has been often ruled here that such special instructions are bad in form, and are due to be refused. Bessemer Co. v. Tillman, 139 Ala. 462, 36 So. 40; U.S.F. & G. Co. v. Habil, 138 Ala. 348, 35 So. 344; Dorsey v. State, 134 Ala. 553, 33 So. 350.

There was evidence tending to support every material averment of count 4, which alleged an assault and battery upon plaintiff, by one for whose wrongful acts in the premises the defendant was accountable, without averring any then relationship in employment or service between the plaintiff and defendant. Jebeles-Colias Confectionery Co. v. Booze, 181 Ala. 456, 62 So. 12. Of course, the general affirmative charge on the whole case was, under those circumstances, correctly refused to defendant.

Counsel for appellant have argued in brief the assigned error predicated of the court's refusal to sustain defendant's motion to quash the service of the summons. According to familiar practice, such rulings cannot be revised here unless presented by bill of exceptions. The bill in this instance does not contain any allusion to this matter, nor an exception to the complained of action of the court in the premises. The statement in the record proper that an exception was taken or reserved does not serve the purpose of presenting the matter for review. The like considerations...