Jebeles & Colias Confectionery Co. v. Booze

• Decision Date: 17 April 1913
• Citation: 62 So. 12,181 Ala. 456
• Court: Alabama Supreme Court
• Parties: JEBELES & COLIAS CONFECTIONERY CO. v. BOOZE.

62 So. 12

181 Ala. 456

JEBELES & COLIAS CONFECTIONERY CO. v. BOOZE.

Supreme Court of Alabama

April 17, 1913

Rehearing Stricken May 8, 1913

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by Jim Booze against the Jebeles & Colias Confectionery Company, for damages for assault and battery. Judgment for plaintiff, and defendant appeals. Affirmed.

The appellant corporation conducts a bakery and candy business and in their place of business on or about the 5th of October, 1910, plaintiff was struck with a piece of scantling; some of the testimony tending to show that the blow was struck by Colias, and the other testimony tending to show that the blow was struck by Darious, who was in the employ of the corporation and closely resembled Colias. The complaint charged that on the 6th day of October, 1910 Nicholeas Colias, an agent or servant of the defendant, while engaged in and about the business of defendant, and acting within the line and scope of his authority as such agent or servant willfully, wantonly, and violently assaulted and beat plaintiff, by striking him over the head with a piece of wood or other blunt instrument, greatly mashing and bruising plaintiff's head; "and plaintiff avers that by reason thereof, and as a proximate consequence of the willful, wanton, and violent assault made on him by the agent or servant of defendant, as above set out [here follows catalogue of physical and mental injuries, etc.]." This is the second count. The demurrers to that count are that it seeks to recover for the act of defendant's agent or servant, and it is not averred or shown what service or employment the said defendant or its said servant or agent was engaged in, or that there was any duty upon defendant to protect plaintiff from the assaults of its servant or agent and that it seeks to recover punitive damages without showing that defendant was authorized to commit said assault, or that the same was ratified or acquiesced in by the defendant, and that, so far as appeared from said count, plaintiff and some agent or servant of defendant engaged in a personal affray without reference to the corporate business of defendant.

The following charges were refused to defendant:

"(2) If you believe from all the evidence that plaintiff was assaulted as alleged in said complaint, but that said assault was committed by some person not an agent or employé of defendant, you must give a verdict in favor of defendant, provided you believe that defendant did not authorize or instigate such assault." "(6) I charge you under all the evidence in this case that the plaintiff vouched for the truthfulness of the witness J.S. Nix, when he placed said Nix on the witness stand."

The following charge was given for plaintiff:

"A. If the jury believe from the evidence that Nicholeas Colias, while acting as manager or boss of Jebeles & Colias Confectionery Company's place of business, where the assault is alleged to have been committed, while acting within the line and scope of his authority, as such manager or boss, wrongfully struck, assaulted, and beat plaintiff, then Jebeles & Colias Confectionery Company, the defendant in this suit, is liable in damages for such assault and battery, and the plaintiff is entitled to recover in this case."

F.E. Blackburn, and C.B. Powell, both of Birmingham, for appellant.

C.D. Ritter, of Birmingham, for appellee.

SAYRE J.

There was ample evidence to warrant the jury in finding that plaintiff (appellee) had been in the employment of the defendant corporation, and had discharged his duties under the personal direction and control of Colias; that on the occasion in question Colias had discharged plaintiff on account of some difference which had arisen between them about plaintiff's manner of doing his work, and then, while plaintiff was in the act of leaving, but was still in defendant's place of business, had committed an aggravated assault upon him. There was nothing in the testimony to indicate that the assault grew out of anything other than the difference indicated above and some temper evolved from the fact and manner of plaintiff's dismissal from defendant's service. The jury were authorized, therefore, to find that the assault was committed in the course of Colias' employment and in the line of his...