Glidden Co. v. Laney

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

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 &amp Hardware Company, against the Glidden Company, G.L. Pierce and another. From a judgment for plaintiff, the named defendants appeal.

Reversed and remanded.

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, 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 appear that he knew that Black did not know there were two different men. He did not tell Black that his debtor had any interest in the paint and hardware company, but only that he could be found there, and that it was his business address.

We think that under such circumstances he could not have foreseen that Black would probably sue L.S. Laney, operating the Laney Paint & Hardware Company. See Chambliss v. Blau, 127 Ala. 86, 28 So. 602; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176; Dismukes v. Trivers Clothing Co., 221 Ala. 29, 127 So. 188; Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685.

But the contention is made on the one hand that, though not specially authorized to sue L.S. Laney, it was included in Black's authority to collect by suit, and, therefore, within the line and scope of his employment. Appellants contend that the general rule whereby a principal is liable for the acts of its agents in the scope of their employment does not apply in malicious prosecutions, especially when begun by an attorney not specially authorized, and in respect to a civil suit when there is no attachment or garnishment.

That controversy is the occasion here to go back into and analyze a bit of our judicial history. It relates to the question of liability of a principal, especially a corporation, for the malice and want of probable cause by an agent in the scope of his employment.

Prior to the case of Gilliam v. South & North Alabama R.R. Co., 70 Ala. 268, this court had held that a master was not liable on the doctrine of respondeat superior for the intentional wanton or malicious wrongs of his servant done in the scope of his employment. But that case overruled the earlier authority and established a rule by which such liability existed thereafter under those circumstances. Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 Ann.Cas. 1149; Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869. It had also been held in an earlier case that there can be no such thing as malice by a corporation, and that a suit in which that is an element could not be maintained against a corporation. But in Jordan v. Alabama Great Southern R.R. Co., 74 Ala. 85, 49 Am.Rep. 800, a different rule was established and that in a suit for malicious prosecution, overruling the former case, and holding that corporations could be held liable for a tort involving malice. But it did not discuss, though reference was made to the fact, that the malice may be that of the agent of the corporation. That was for the malicious prosecution of a criminal cause.

Since those cases, there seems to have been no doubt among...