Ex parte Louisville & N.R. Co.

• Decision Date: 26 June 1919
• Docket Number: 6 Div. 927
• Court: Alabama Supreme Court
• Parties: Ex parte LOUISVILLE & N.R. CO.

83 So. 52

203 Ala. 328

Ex parte LOUISVILLE & N.R. CO.

6 Div. 927

Supreme Court of Alabama

June 26, 1919

Rehearing Denied Oct. 23, 1919

Certiorari to Court of Appeals.

Action by D.S. Lacey against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which affirmed the judgment (82 So 636), and defendant brings certiorari. Writ granted, and cause reversed and remanded.

Mayfield Gardner, and Thomas, JJ., dissenting in part.

Tillman Bradley & Morrow and T.A. McFarland, all of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

SOMERVILLE J.

The complaint is "for an assault and battery committed on plaintiff by the defendant through its servant or agent on one of its passenger trains, who was acting in the line and scope of his employment."

As correctly held by the Court of Appeals, the complaint is in trespass vi et armis, and not in case; and the plea of limitations of one year was therefore subject to demurrer.

The plaintiff's evidence showed that he was a passenger on the defendant's train, and that, without fault on his part, he was assaulted and beaten by the conductor while in charge of the train for the defendant.

On the theory that the conductor was, with respect to his duties to plaintiff, the alter ego of defendant, and that defendant was therefore corporately present and participating in the conductor's battery upon plaintiff, the Court of Appeals holds that defendant directly and corporately committed the battery as charged in the complaint.

We think this holding is in conflict with the principles of law announced and applied in the case of City Delivery Co. v Henry, 139 Ala. 161, 167, 34 So. 389, which has been followed in the later cases of Bessemer Coal Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A. (N.S.) 389; B.R.L. & P. Co. v. Hayes, 153 Ala. 178, 189, 44 So. 1036; Newberry v. Atkinson, 184 Ala. 567, 64 So. 46; and L. & N.R.R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103. These cases all hold that a complaint like that here exhibited charges an act directly authorized by the corporation, and is not supported by proof of an unauthorized act by an agent for which the corporation is liable on the principle only of respondeat superior, and in an action in the form of trespass on the case. The question, however, is not merely one of the form of the action. It is, primarily, one of variance between allegation and proof. As said in the Henry Case:

"The injury ascribed to the defendant is direct and immediate from force applied by it, and not merely from force applied by its servant within the scope of its employment. *** To sustain them [the counts] proof of actual participation on the part of the defendant in the damnifying act was essential."

The meaning and effect of this language is unmistakable....