Hardeman v. Williams

• Decision Date: 24 November 1910
• Citation: 53 So. 794,169 Ala. 50
• Parties: HARDEMAN v. WILLIAMS.
• Court: Alabama Supreme Court

53 So. 794

169 Ala. 50

HARDEMAN v. WILLIAMS.

Supreme Court of Alabama

November 24, 1910

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

Action by Sallie Williams against B. F. Hardeman, individually, and as doing business under the name of J. O. Bell. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count is for assault and battery, as are the third and fourth. The fifth and sixth are for trespass to land. The other counts sufficiently appear in the opinion. The facts as they appear in the record are substantially as set out in the second appeal in this case.

The following charges were given at the instance of the plaintiff: (2) "The master can never escape liability for the abuse of authority by the servant, provided the acts were such as were incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and positive order." (3) "The court charges the jury that if Sallie Williams was unlawfully assaulted, or caused to be unlawfully assaulted, by L. E Myers, while said Myers was the agent of the defendant's husband, and if they further believe from the evidence that at such time said Myers was acting within the line of the business assigned him by the defendant, the jury must find a verdict for the plaintiff." (7) "A master cannot screen himself from liability for an injury committed by his servant within the line of his employment, by setting up private instructions or orders given by him and their violation by the servant. By putting the servant in his place, he becomes responsible for all acts within the line of his employment, and in and about the business assigned to him by the master, although they are willfully and directly antagonistic to his order." (8) "The master is liable for the act of his servant for all injuries to the personal property done or caused by the act of the servant if the act which results in injury is done while acting within the scope of his employment in the master's service, and in and about the business assigned to him by the master, though the act was not necessary to the performance of the servant's duties, or was not expressly authorized by the master or known to him."

The following charges were refused to the defendant: (1) General affirmative charge for defendant. (2) Affirmative charge as to the count for assault and battery. (3) "The court charges the jury that they cannot find a verdict for the plaintiff for an assault and battery on her, unless they are reasonably satisfied from the evidence that the said Myers committed an assault and battery on the plaintiff, and that at the time the said assault and battery was committed the said Myers was actually engaged in the performance of the services for which he was employed, and that said assault and battery was incident to the performance of his particular duties of the said Myers' employment."

Inge &amp McCorvey, for appellant.

C. W Tompkins, for appellee.

SAYRE J.

We have heretofore had occasion to consider this case. Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.) 653; 157 Ala. 422, 48 So. 108. The complaint which first came here counted upon an assault and battery. When it was here last the complaint had been amended by adding counts A and B. On the last appeal nothing was considered but the propriety of the judgment of the circuit court setting aside a verdict which had been rendered on a second trial. The record proper has remained unchanged since then. The trial court had overruled demurrers to the added counts, and these rulings, along with others shown by the bill of exceptions, are now assigned for error.

Count A claimed damages "for a trespass * * * [done by defendant] upon the following property: A dwelling house in the possession of the plaintiff [[[describing it], on or about the 14th day of April, 1904, and for taking out of said house the following personal property: One iron bedstead," etc. On the authority of Henry v Carlton, 113 Ala. 636, 21 So. 225, it is argued that there is a joinder in this count of trespass to realty with trespass to personalty--two separate and distinct causes of action. In the case relied upon the fifth count of the complaint claimed damages "for a trespass by the defendants on the following tract of land [describing it], and for assaulting and beating the plaintiff on or about the 15th day of September, 1906." The court had to say: "Each of the fifth and sixth counts of the complaint count upon a trespass upon land, and for assaulting and beating the plaintiff, etc. The defendants' demurrer raises the question as to whether the two claims as averred can be united in the same count. We are of the opinion that a plaintiff may aver a trespass upon land in a count for trespass upon the person, and recover for both, when the averments are such as to show but one transaction. But when the count shows that damages are sought for a trespass upon the land and for a trespass upon the person, and the pleadings fail to show that they are of the same transaction, the two cannot be united in one count." Construing the count most strongly against the pleader, it was held that a demurrer taking the point should have been sustained. To distinguish this case from Henry v. Carlton, it will suffice to say that there two distinct wrongs were each adequately declared on in one count, while here the averment in respect to taking away the personal property, dissociated from the averment of trespass to realty, is wholly insufficient to charge actionable wrong. The count fails to show that the property carried away was the property of plaintiff, or in the plaintiff's possession, or that the mere carrying away was wrongfully done. So, then, the merit of the count is to be found in its allegation of trespass to the realty, in which respect it was sufficient because it followed the Code form. There was no joinder of distinct and separate causes of action to render the count bad because they were not alleged to have arisen out of the same transaction. The allegation in respect to carrying away the household goods, at its best, or worst, can only be taken as the allegation of a fact circumstantial to and...