Gray v. Williams, 6 Div. 591

• Citation: 230 Ala. 14,160 So. 715
• Decision Date: 11 October 1934
• Docket Number: 6 Div. 591
• Parties: GRAY et al. v. WILLIAMS.
• Court: Supreme Court of Alabama

160 So. 715

230 Ala. 14

GRAY et al. v. WILLIAMS.

6 Div. 591

Supreme Court of Alabama

October 11, 1934

Rehearing Denied Jan. 24, 1935.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by Bennie Lou Williams, a minor, suing by her next friend, Mrs. N.B. Cheatham, against Walter Gray and O.B Hambrick. From a judgment for plaintiff, defendants appeal.

Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

Cabaniss & Johnston and Jos. F. Johnston, all of Birmingham, for appellants.

Harsh Harsh & Hare, of Birmingham, for appellee.

BOULDIN Justice.

Count A of the complaint, one of the counts on which the cause was tried, claimed damages "for that heretofore to-wit on July 9, 1931, a servant or agent of defendants acting within the line and scope of his authority as such servant or agent committed an assault and battery on the person of plaintiff."

An an approach to the questions raised touching this count, we first review certain tendencies of the evidence.

Plaintiff Bennie Lou Williams, a girl 15 years of age, was living with her mother at Mulga, Ala., a mining camp.

Defendant, Walter Gray, had sworn out a warrant for the arrest of one Collier, on a charge of theft of Mr. Gray's automobile. This warrant, issued by lawful authority, was placed in the hands of Claude H. Thaxton, a constable, at Porter, some ten miles from Mulga.

On the occasion named, according to plaintiff's version, Thaxton, accompanied by the defendants Walter Gray and 0.B. Hambrick, came to the home of Mrs. Williams, now Mrs. Cheatham, between 8 and 9 o'clock at night. Thaxton knocked at the front door; getting no response, he went to and knocked on the back door.

Mrs. Cheatham says at this point she called to know who it was. Thaxton replied: "Thaxton from Porter *** get up and open the door, Mrs. Williams." She opened the door slightly, and Thaxton asked if the Collier boy was there. She answered: "No." He asked: "Are you sure?" She asked: "What is the matter?" He said: "I want to get hold of him and he has not been in Porter for two or three days." He then said he believed Collier was there. The mother had meantime directed the daughter to hold the door, which she did. Thaxton then said: "Someone hand me a light. I am going to search the house." The daughter, this plaintiff, said, "Don't do that." Some one handed him a flash-light, he pushed by the plaintiff, entered the house, and searched for Collier. He was not there.

The plaintiff's testimony is to similar effect, varying in some details. She says Thaxton put his hand upon her shoulder and pushed her back, so that he could enter the door. No physical injury was inflicted. The search was orderly.

Defendants' evidence was to the effect that Thaxton, the officer, after several days' effort to locate Collier, was informed that he was at the home of Mrs. Williams, or might be there. He had been there some days before. Defendant Hambrick, at Thaxton's request, carried him from Porter in Hambrick's automobile.

Defendants' witnesses all deny the presence of Mr. Gray at the time. They testify that the third party was E.H. Robinson, a deputy sheriff, who went with Thaxton, the constable, at the latter's request. They also deny that Thaxton entered the house, or touched the person of plaintiff; say light was turned on in the house; and, on being assured by Mrs. Williams that Collier was not there, Thaxton and associates went away.

Appellants first insist count A was a departure from the original complaint, worked a complete change of the cause of action, and defendants' objection to allowing same should have been sustained in the court below.

The original complaint counted upon a trespass upon the premises and wrongful search of plaintiff's dwelling. The amended count A, for assault and battery, a trespass against the person, does not, on its face, indicate any relation to the alleged trespass to lands.

But under our liberal system of amendments two or more torts, parts of the same transaction, may be joined in the first instance. Bringing one of them in by amendment is allowable. By further amendment, the cause may be tried on any one or more of the alleged torts committed in course of the same transaction. It is not necessary the complaint should show the several counts relate to torts which arise out of the same transaction. This, by statute, is made a question of fact for the jury. If any assault and battery was committed on the person of plaintiff under the facts of this case, it occurred in connection with, and as part of, an unlawful and forcible entry into the dwelling, and a part of the same transaction within the meaning of our amendment statute. One of its purposes is to inquire into all phases of the affair in one action; the parties being the same. Code, § 9513; First Nat. Bank of Gadsden v. Morgan, 213 Ala. 125, 104 So. 403; Horst v. Barret, 213 Ala. 173, 104 So. 530; Central of Georgia Railway Company v. Foshee, 125 Ala. 199, 27 So. 1006; Crawford v. Mills, 202 Ala. 62, 79 So. 456.

Count A, however, is in case, based on the doctrine of respondeat superior, the basic principle of which is the relation of master and servant, employer and employee. Evidence is entirely wanting of any such relation between Thaxton and either of these defendants. That Thaxton was there as a public officer, commanded by a warrant in his hands to arrest Collier, was proven without objection to form of proof; and all the evidence discloses he was acting as such officer.

As for defendant Hambrick, the evidence, without dispute, discloses he was there at Thaxton's request, and nothing connects him with the officer's wrongful conduct in any way. So far as appears, he was a mere bystander. Transporting a public officer to a given place at the officer's request, with no knowledge the officer is purposing to commit a tort, neither constitutes the officer an agent or servant of the other party nor does his presence make him a participant in any such tortious act.

As for defendant Gray, plaintiff's evidence tended to show his immediate presence at the time of the alleged assault that he handed Thaxton the flash-light, and later inquired of Thaxton whether he made a complete...