Corona Coal & Iron Co. v. Callahan

• Citation: 81 So. 591,202 Ala. 649
• Decision Date: 17 April 1919
• Docket Number: 6 Div. 844
• Parties: CORONA COAL & IRON CO. v. CALLAHAN.
• Court: Alabama Supreme Court

81 So. 591

202 Ala. 649

CORONA COAL & IRON CO. v. CALLAHAN.

6 Div. 844

Supreme Court of Alabama

April 17, 1919

Appeal from Circuit Court, Walker County; T.L. Sowell, Judge.

Action by Pat Callahan against the Corona Coal & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A.F Fite, of Jasper, for appellant.

Leith &amp Powell, of Jasper, for appellee.

MAYFIELD J.

Appellee sued appellant and another corporation of a similar name Corona Coal Company. The complaint contained three counts. The first count was for false imprisonment; the second for malicious prosecution; and the third for assault and battery. The first and third counts were eliminated by instructions to which action no objection is now made; and the other corporation is also eliminated by the affirmative instruction in its favor as to all the counts. The trial resulted in a verdict and judgment for the plaintiff, appellee, against the appellant corporation for $2,500.

The evidence showed, or tended to show, that appellee, the plaintiff below, was arrested under a warrant issued by a justice of the peace, and upon an affidavit made by one Earl Edgil, charging him with the offense of trespass after warning on the premises of appellant corporation. He was placed in the county jail under this arrest, after declining to make bond, remained there for a few hours, and was then released on making an appearance bond. The case was docketed against him in the county court of Walker county, and he was subsequently discharged by that court. The transcript from the county court, and certified copies of the affidavit and warrant of arrest, show that Earl Edgil, who made the affidavit, was a deputy sheriff of Walker county, and made the arrest as such officer, which is shown by the return on the warrant of arrest, introduced in evidence by the plaintiff.

The plaintiff claims, however, that this deputy sheriff was also the agent of appellant, or the other defendant corporation, in making the affidavit and in instituting the prosecution against the plaintiff. Unless he was such agent for such purpose, no possible right of action was shown.

In fact, the main disputed question was, and is now, whether or not the deputy sheriff was acting as the agent of appellant in instituting the criminal prosecution against appellee in the county court.

The plaintiff filed interrogatories to both of the defendants under the statute, and introduced the answers thereto in evidence. These answers denied the agency of the deputy sheriff in instituting the prosecution.

The trial court allowed the plaintiff, over the objection of defendant, to prove the declarations of the alleged agent to prove agency, as well as the acts of the agent. The general rule of evidence is that agency cannot be proven by the declarations of the agent, though his declarations as to other matters on certain occasions may be admissible to prove other facts. There are some authorities to the effect that declarations of the agent are never admissible to prove the agency. This rule, however, is not adhered to in all its strictness by the more recent decisions of this court; but the rule is thus qualified by our decisions:

"Any declaration of the

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