Hardeman v. Williams

• Decision Date: 20 April 1907
• Citation: 43 So. 726,150 Ala. 415
• Parties: HARDEMAN v. WILLIAMS.
• Court: Alabama Supreme Court

43 So. 726

150 Ala. 415

HARDEMAN v. WILLIAMS.

Supreme Court of Alabama

April 20, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Sallie Williams against B. F. Hardeman. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action by Sallie Williams against B. F. Hardeman, individually and doing business in Mobile as J. O. Bell, for assault and battery. The complaint was as follows: "(1) The plaintiff claims of the defendant the sum of five thousand dollars damages for an assault and battery committed or caused to be committed on the plaintiff on the 14th day of April, 1904, by one L. E. Meyers, the agent or servant of defendant, who was then and there acting within the scope of his employment as such agent or servant. (2) The plaintiff claims of the defendant the further sum of five thousand dollars damages, for that, to wit, on or about the 14th day of April, 1904, one L. E. Meyers, the agent or servant of defendant, who was then and there acting within the scope of his employment, maliciously assaulted and beat, or caused to be assaulted and beaten, the plaintiff, to her damage as aforesaid. (3) The plaintiff claims of the defendant the further sum of five thousand dollars, for that heretofore, to wit, on or about the 14th day of April, 1904, one L. E Meyers, who was then and there the agent or servant of B. F Hardeman, the defendant, and who was then and there acting within the line and scope of his authority and employment came to the plaintiff's house and maliciously assaulted beat, or otherwise mistreated, or caused to be beaten, assaulted, or otherwise mistreated, the plaintiff, to her great bodily harm and mental suffering, to her great damage as aforesaid, and by reason of said injuries caused plaintiff to expend large sums of money for medicine, doctors' bills, and also caused her the loss of much time. (4) The plaintiff claims of the defendant the further sum of five thousand dollars damages, for that heretofore, on or about the 14th day of April, 1904, L. E. Meyers and Malcomb J. Faligant, who were then and there the agents or servants of B. F. Hardeman, and who were at that time acting within the scope of their employment, came to plaintiff's house, and maliciously assaulted, beat, or otherwise mistreated, or caused to be so assaulted or beaten, the plaintiff, causing her great bodily suffering and mental anguish, to her damage as aforesaid." The demurrers were as follows: "(1) Because said complaint does not set out any facts showing that Meyers was acting within the scope of his employment. (2) Because said complaint does not set out any facts showing that Meyers had authority to bind Hardeman by causing some one to assault Sallie Williams."

The facts on which the opinion is rested sufficiently appear in the opinion. Judgment for plaintiff for $100.

Francis J. Inge and Mark D. Brainard, for appellant.

Chas. L. Bromberg and Chas. W. Thompkins, for appellee.

DENSON J.

The complaint originally contained seven counts, but was amended by striking out the last three. To the complaint as amended the demurrer of the defendant was overruled. In respect to the points made by the demurrer, the averments of the complaint are sufficient, and the demurrer was properly overruled.

The point, made by the appellee, that no plea was filed, and the cause was tried without the averments of the complaint being put in issue, is without merit, and cannot prevent consideration of the assignments of error presented by the bill of exceptions. It is manifest from the record that both parties without objection tried the case to its conclusion as if on issue joined on the plea of the general issue. Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141, 12 So. 86.

In this action the plaintiff seeks to recover damages for assault and battery alleged to have been committed on her person by an agent or servant of the defendant. The doctrine of the liability of the master for the wrongful acts of his servant is predicated upon the maxims, "Respondeat superior" and "Qui facit per alium facit per se." In fact, it rests upon the doctrine of agency. Therefore the universal test of the master's liability is whether there was authority, express or implied, for doing the act; that is, was it done in the course and within the scope of the servant's employment? If it be done in the course or within the scope of the employment, and in the accomplishment of objects within the line of his duties, the master will be liable for the act. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant for the time is suspended. Cooley on Torts, 533 et seq.; Wood on Master and Servant, §§ 286, 307; Morier v. St. Paul, etc., R. Co., 31 Minn. 351, 17 N.W. 952, 47 Am. Rep. 739; Bowler v. O'Connell, 162 Mass. 319, 38 N.E. 498, 27 L. R. A. 173, 44 Am. St. Rep 359; Houston Central R. R. Co. v. Bolling, 59 Ark. 395, 27 S.W. 492, 27 L. R. A. 190, 43 Am. St. Rep. 38; McCann v. Tillinghast, 140 Mass. 327, 5 N.E. 164; Palos Coal & Coke Co. v. Benson (Ala.) 39 So. 727, and cases there cited. The law is clearly expressed in the case last cited, in...