Eutaw Ice, Water & Power Co. v. McGee

• Decision Date: 11 February 1919
• Docket Number: 2 Div. 192
• Citation: 81 So. 144,16 Ala.App. 652
• Parties: EUTAW ICE, WATER & POWER CO. v. McGEE.
• Court: Alabama Court of Appeals

81 So. 144

16 Ala.App. 652

EUTAW ICE, WATER & POWER CO. v. McGEE.

2 Div. 192

Court of Appeals of Alabama

February 11, 1919

Appeal from Circuit Court, Greene County; H.B. Foster, Judge.

Action by J.S. McGee against the Eutaw Ice, Water & Power Company to recover damages for wanton breach of duty in disconnecting water supply. From judgment for plaintiff, defendant appeals. Affirmed.

R.B Evins, of Greensboro, for appellant.

Harwood McKinley, McQueen & Aldridge, of Eutaw, for appellee.

SAMFORD J.

The action was begun in a justice of the peace court, and on appeal the plaintiff offered orally to amend the complaint by adding an additional count. Defendant filed written objections to the allowance of this amendment, and there is incorporated in the record the following entry regarding to the objection:

"This day came the plaintiff by their attorney asked leave of the court to amend complaint by adding count 4, and adding to the accounts each count, 1, 2, and 3, as shown by amendment this day filed in writing. Defendant by attorney objects to allowance of said amendment as shown by objections in writing this day filed. Objection overruled, and amendment allowed. Defendant reserving exception to the ruling of the court. This cause continued."

The foregoing is shown by the record, but not in the bill of exceptions. Objections of this character are not covered by Acts 1915, p. 598, and hence, when not presented by the bill of exceptions, cannot be reviewed by this court. Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 So. 40; C of Ga. Ry. v. Joseph, 125 Ala. 313, 28 So. 35.

But, aside from this, we may say that in any event the allowance of the amendment was not error. The three original counts were in case, charging an act by the defendant corporation, which was not a trespass either to the person or property of the plaintiff, but a breach of duty, growing out of its obligation to furnish water to the citizens of Eutaw, Ala., as having been wantonly or willfully done, and the count added by amendment charged the corporation with having wrongfully and intentionally done the same act. Both the original counts and the amended counts charged that the defendant acted through its agent. We cannot see that in the amendment there was a departure. Ala. Con. C. & I. Co. v. Heald, 154 Ala. 580, 45 South 686.

The next contention of appellant is that, as the charge is against the corporation, the plaintiff must fail because it failed to prove that the officer giving the order to the servant to disconnect the water pipe was the alter ego of the corporation. In this connection, it was shown that the president of the company lived in another city; that Baskerville, who gave the order for the disconnection, was the resident general manager; that he was in charge of the works; that he gave all orders, hired and discharged all employés, made settlements and adjustments for water bills and other accounts due the company, and that he assumed to act for the corporation in its dealings with the public generally; and that, while acting as the general...