Louisville & N.R. Co. v. Lacey
| Decision Date | 06 May 1919 |
| Docket Number | 6 Div. 522 |
| Citation | 82 So. 636,17 Ala.App. 146 |
| Court | Alabama Court of Appeals |
| Parties | LOUISVILLE & N.R. CO. v. LACEY. |
Rehearing Denied May 19, 1919
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
Action by D.S. Lacey against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Tillman Bradley & Morrow, of Birmingham, for appellant.
L.J Cox, of Phoenix, Ariz., for appellee.
The complaint was in the following language:
"Plaintiff claims of the defendant corporation the sum of $1,000 damages, for an assault and battery committed on plaintiff by the defendant through its servant or agent on one of its passenger trains, who was acting in the line and scope of his employment, but whose name is to plaintiff unknown, on, to wit, the 7th day of February, 1913."
In addition to the general issue, the defendant pleaded the statute of limitations of one year. This plea was demurred to and the demurrer was sustained, and that ruling of the court is here presented for review. If the count is in trespass the ruling of the court was free from error; if in case, then the court committed error in its ruling. Section 4835 subdiv. 1, of the Code of 1907, was not designed to destroy the distinction between trespass and actions on the case. On the contrary, the distinction remains as it was, and to come within the statute the complaint must declare a trespass.
Does the count do this? It is now well settled that a corporation may be held liable in an action of trespass for an assault and battery committed by it. 7 R.C.L. p. 688; 7 R.C.L. p. 652. The authorities collated in 7 R.C.L. p. 652 (note 7) amply support this proposition. In order for the corporation to be liable in trespass, there must be a charge of direct, intentional causation, as distinguished from a charge of consequential injury. City Delivery Co. v. Henry, 139 Ala. 166, 34 So. 389; Eutaw I., W. & P. Co. v. McGee, 81 So. 144; Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 41 L.R.A. 650, 67 Am.St.Rep. 32; N.B. & L. Co. v. Wilson (Sup.) 73 So. 436; Central of G. Ry. Co. v. Freeman, 140 Ala. 581, 37 So. 387.
It will be observed that in the case of L. & N.R.R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103, where the court seems to have held that count C was trespass as against the employé and case as against the corporation, following Southern Ry. Co. v. Hanby, 166 Ala. 641, 52 So. 334, and other decisions in this state, the allegation was that the injury to plaintiff was due to the "willful, wanton, or intentional conduct of Seymour Carleton, a servant," etc., while acting within the line and scope of his employment, etc., while in the instant case the charge is that the defendant, by using one of its agencies, assaulted and beat plaintiff--a very different case from the cause of action as stated in the Abernathy Case, supra. In either case, the defendant corporation would be liable in the proper action. If the injury was the result of the wrong of the servant, the action would be in case; if the wrong was the result of the direct act of the corporation, then the action is trespass. The charge in the instant case is that the defendant corporation committed the assault and battery. True, it goes further and alleges that it was done through an agent on one of defendant's passenger trains. But how else could the corporation act, except through some agency? We are clearly of the opinion that the action is in trespass. Central of Ga. Ry. Co. v. Freeman, 140 Ala. 581, 37 So. 387; Bessemer C., I. & L. Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A. (N.S.) 389.
To sustain this count the plaintiff must bring proof of actual participation on the part of the defendant corporation in the damnifying act--either that the board of directors authorized it by resolution, or that the agent through whom the defendant acted was its alter ego in the particular capacity in which he was then acting. Central of Ga. Ry. Co. v Freeman, supra; Eutaw I., W. & P. Co. v. McGee, supra; L. & N.R.R. Co. v. Laney, 14 Ala.App. 287, 69 So. 993; Hart v. Jones, 14 Ala.App. 327, 70 So. 206. The plaintiff's evidence, if believed by the jury, established the facts that plaintiff was a passenger on one of defendant's passenger trains; that without fault on his part, while such passenger, he was assaulted and beaten by the conductor in charge of the train, collecting fares and acting generally in that capacity in the conduct of the defendant's business, and while engaged in a controversy with plaintiff with regard to his fare. Whatever may have been the rule laid down by the earlier decisions, it is now firmly established that a corporation may be guilty of a trespass, and may be held liable in an action of trespass for the direct act of its officer or agent done pursuant to the rules and regulations of the company, or in order to accomplish the purpose of the employment. The above rule is laid down in 7 R.C.L. p. 652, and the authorities are there collated to support it, which citations we refer to without here setting them out. If, then, the corporation can be guilty of a trespass, it must act through some agency. In this case it has acted, if at all, through the conductor of one of its passenger trains, pursuant to his duty as the representative of the company in its dealing with the plaintiff, who was a passenger of defendant, entitled to all of the rights and protection as such. It was the duty of the defendant under its contract of carriage to have transported the plaintiff safely and properly and to have treated him respectfully. This was a duty properly belonging to the master as such, and in such case, where the duty is intrusted to a servant, the servant takes the place of the master, and the master is chargeable with the acts of the servant as if performed by the master personally and with all the knowledge in the premises which the law imputes to him. Ga. P. Ry. Co. v. Davis, 92 Ala. 300-313, 9 So. 252, 25 Am.St.Rep. 47; McKinley on Fellow Servants, p. 53,§ 23; A. & F.R.R. Co. v. Waller, 48 Ala. 459; M. & M.R.R. Co. v. Smith, 59 Ala....
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