Central of Georgia Ry. Co. v. Carlock

• Decision Date: 11 May 1916
• Docket Number: 6 Div. 168
• Parties: CENTRAL OF GEORGIA RY. CO. v. CARLOCK.
• Court: Alabama Supreme Court

72 So. 261

196 Ala. 659

CENTRAL OF GEORGIA RY. CO. v. CARLOCK.

6 Div. 168

Supreme Court of Alabama

May 11, 1916

Rehearing Denied June 30, 1916

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

Action by Walter H. Carlock against the Central of Georgia Railway Company and another. From judgment for plaintiff, the named defendant appeals. Reversed and remanded.

Thomas J., dissenting.

London & Fitts, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

McCLELLAN J.

The appellee instituted this action against the railway company a corporation (appellant), and one H.C.

Jones. The complaint contained three counts, the first and second charging the wrongful arrest and imprisonment of the plaintiff. The jury's consideration of these counts was forbidden by instructions given at the instance of the railway company. The third count thus appears in the transcript:

"The plaintiff claims of the defendants $25,000, damages, for that, heretofore, to wit, on the 15th day of April, 1913, defendant's servant or agent, acting within the line and scope of his authority as such, wrongfully arrested and imprisoned plaintiff for a long time, viz., for one day, and, as a proximate consequence thereof, plaintiff suffered the injuries and damages set out in the first count of the complaint."

As readily appears, this count would fix liability, for the damnifying consequences of the wrong charged, under the doctrine of respondeat superior. In order to avail of this doctrine, it was imperative that the pleader make certain, at least to a common intent, in whose services, of the two defendants, the derelict agent or servant was when he committed the wrong for which recovery was sought. The count, as phrased, left entirely uncertain in whose service, of the two defendants, the derelict agent or servant was engaged when the wrong alleged was inflicted upon the plaintiff. In this state of the averments of the count, no other conclusion is possible under our authorities than that the count failed to state a cause of action; and, being so completely ineffectual, no valid judgment could be predicated of the count. Osborne v. Cooper, 113 Ala. 405, 21 So. 320, 59 Am.St.Rep. 117; L. & N.R.R. Co. v. Duncan & Orr, 137 Ala. 446, 453, 455, 34 So. 988, and decisions therein cited. The fact that the latter decision, and others in its line, involved alternatives does not invite a conclusion that would render them inapplicable to the count under consideration. In those cases, the pleader had sought to at least declare, alternatively, upon theories of responsibility; whereas, in the count here in question, the pleader left the essential matter of definite ascription of the agent's authority in the premises wholly at large between two defendants. A judgment by default could not have been validly rendered on the count; for the court could not have known to which of the two defendants the derelict agent's wrong was ascribed by the pleading or was attributable as the basis for liability, under the doctrine of respondeat superior. There is nothing on the face of the count to justify this court in assuming that there was mere clerical error in the use of the singular, instead of the plural, possessive of the word "defendant" in describing and designating the principal or master of the agent or servant to whose conduct the liability was ascribed.

Where the tortious conduct or omission relied on for a recovery is alone the result of negligence in the performance of duty on the part of an agent or servant, the principal or master and the derelict agent or servant may be joined as defendants in a...