Gassenheimer v. Western Ry. of Alabama

• Decision Date: 08 February 1912
• Citation: Gassenheimer v. Western Ry. of Alabama, 57 So. 718, 175 Ala. 319 (Ala. 1912)
• Parties: GASSENHEIMER v. WESTERN RY. OF ALABAMA.
• Court: Alabama Supreme Court

57 So. 718

175 Ala. 319

GASSENHEIMER v. WESTERN RY. OF ALABAMA.

Supreme Court of Alabama

February 8, 1912

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by Leo. Gassenheimer against the Western Railway of Alabama. From a judgment overruling plaintiff's motion for a new trial after judgment for defendant, plaintiff appeals. Reversed and remanded.

Letcher McCord & Harold, for appellant.

Steiner Crum & Weil, for appellee.

SAYRE J.

Plaintiff sent a drayman from his place of business to the freight house of the defendant railway company to fetch some freight. Considerable delay ensuing, plaintiff went to see what was the matter. He found the drayman waiting at the freight house. Then Mabson, one of defendant's delivery clerks came up saying: "I will deliver the freight." The freight bills were then handed to Mabson, and plaintiff went to the office in another part of the building, where he complained of the delay to Mabson's superiors. He does not seem to have mentioned Mabson's name. Mr. Lutz, commercial agent for the railway, and Mr. Stanley, chief clerk, then walked down the freight house in company with the plaintiff, inquiring of several of the delivery clerks what they knew about plaintiff's dray having to wait for freight. When they reached Mabson, who was then and there engaged in defendant's business of delivering freight, he, without a word, or, so far as the evidence shows, a demonstration of any sort from plaintiff, applied to plaintiff a most offensive epithet, and struck and kicked him. The assault left behind it no physical injury. Plaintiff sued the railway company for the assault and battery committed by its agent, and, the jury having acquitted the defendant, made a motion for a new trial on the ground that the verdict was contrary to the law and the evidence. From a judgment overruling the motion, plaintiff appeals.

The court below makes it clear that the motion was overruled on the theory that the jury might have inferred that Mabson assaulted plaintiff because plaintiff had made complaint to his superior officers, and that an assault committed for such reason was not within the scope of Mabson's employment. In this the court erred. It is well settled in the decisions of this court that corporations are liable for the wrongful acts of their agents or employés, done in the course of their employment, or in the line of their assigned duties. The difficulty in particular cases arises in the proper application of this principle of law to the facts. The case of Case v. Hulsebush, 122 Ala. 212, 26 So. 155, is strikingly like the case at bar in all essential respects. In that case the tax collector of Mobile county was held personally liable...