Glidden Co. v. Laney, 6 Div. 58

• Court: Supreme Court of Alabama
• Writing for the Court: FOSTER, Justice.
• Citation: 175 So. 296,234 Ala. 475
• Parties: GLIDDEN CO. et al. v. LANEY.
• Docket Number: 6 Div. 58
• Decision Date: 03 June 1937

175 So. 296

234 Ala. 475

GLIDDEN CO. et al.
v.
LANEY.

6 Div. 58

Supreme Court of Alabama

June 3, 1937

Rehearing Denied June 28, 1937

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Suit for damages by L.S. Laney, doing business as Laney Paint & Hardware Company, against the Glidden Company, G.L. Pierce, and another. From a judgment for plaintiff, the named defendants appeal.

Reversed and remanded. [175 So. 297]

Bradley, Baldwin, All & White, E.L. All, S.M. Bronaugh, and Kingman C. Shelburne, all of Birmingham, for appellants.

Erle Pettus and Erle Pettus, Jr., both of Birmingham, for appellee.

FOSTER, Justice.

This is an action for damages for the malicious prosecution of a civil suit on an account without the issuance of a garnishment or attachment on the authority of Peerson v. Ashcraft Cotton Mills, 201 Ala. 348, 78 So. 204, L.R.A.1918D, 540. It is against a corporation and its general manager and credit manager, and a judgment was rendered for plaintiff against all of them, but on motion for a new trial it was set aside as to the manager, but left against the corporation and credit manager.

The several counts of the complaint charge that the defendants maliciously and without probable cause therefor sued plaintiff. It does not allege that the malice and want of probable cause was that of the individual defendants for which the corporation was liable. It was therefore not necessary to prove the liability of one of them to sustain a judgment against the corporation, if such liability is otherwise shown.

While the allegation is made that the defendants had such malice and lack of probable cause, and charged it as a corporate act so far as the corporation was concerned, it may be proven, since it is an action on the case, by proof that it was done by an agent in the line and scope of his authority, if the general rule in that respect is applicable to this form of action. Alabama Co. v. Norwood, 211 Ala. 385, 100 So. 479.

It was shown that Beauchamp was the local manager and Pierce was credit manager. Pierce handled this matter for the corporation. What he did as such in this connection pertained to his employment as such manager and within that sphere was equal to, or more properly was in the nature of, a corporate act, not so much dependent upon the doctrine of respondeat superior as ordinarily applied, but that of alter ego. Middleton v. General Water Works & Electric Co., 224 Ala. 268, 139 So. 273, and authorities there cited. Neither Pierce, Beauchamp, nor other officer or manager of the corporation authorized the suit against this appellee.

The evidence was without dispute that Jefferson Construction Company owed the corporation an account for goods sold; that the company was a partnership composed of W.P. Beck and H.E. Laney. Pierce gave the account to W.G. Black, an attorney, for collection, and told him to collect it without suit if he could, but to sue if necessary; that the partnership was W.P. Beck and Mr. Laney, but did not state Laney's initials, if he knew them; that it was dissolved, and that Laney could be found and his business address was at Laney Paint & Hardware Company. The evidence showed that this appellee, L.S. Laney, owned and operated Laney Paint & Hardware Company, and that H.E. Laney had no interest in it, but then did make that his business headquarters, as Pierce had told Black. Black wrote a letter to the partnership, which reached H.E. Laney at the paint and hardware company, but he did not do anything about it, and neither did Beck. Black did not know that there were two of the Laneys, and, not knowing the initials of the debtor on the account, he examined the city directory and found that L.S. Laney owned and operated Laney Paint & Hardware Company, and so he sued Beck and L.S. Laney, when it should have been H.E. Laney, and should not have included Laney Paint & Hardware Company, which he did.

The first question is whether the suit was authorized in so far as L.S. Laney was concerned, attributable to the corporation.

We will treat the situation with respect to Pierce and Black separately. First with reference to Pierce. He knew that L.S. Laney, who was sued, did not owe the debt, so that, if he as credit manager authorized the suit against L.S. Laney, it was without probable cause to believe that he owed the debt. The evidence in that respect is without conflict, and when so, the court must determine whether it shows probable cause, and not leave it to the jury. Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651; Elliott v. Caheen Bros., 228 Ala. 432, 153 So. 613; McMullen v. Daniel, 229 Ala. 194, 155 So. 687; 38 Corpus Juris, 505. So that, when Pierce gave Black his instruction and information, he must have wantonly or intentionally, not simply negligently, [175 So. 298] misled him to believe that L.S. Laney was one of the debtors. He must have intentionally done an act which would probably have caused Black to make such a mistake. It does not...