Louisville & N.R. Co. v. Abernathy

CourtSupreme Court of Alabama
Citation73 So. 103,197 Ala. 512
Docket Number5 Div. 587
Decision Date30 June 1916

On Rehearing, November 21, 1916

Appeal from Circuit Court, Chilton County; W.W. Pearson, Judge.

Action by Hobson Abernathy, by his next friend, against the Louisville & Nashville Railroad Company and others, for damages for personal injury. Judgment for plaintiff, and defendant named appeals. Reversed and remanded, and application for rehearing overruled.

Mayfield Gardner, and Thomas, JJ., dissenting.

In an action for personal injuries, requested charge directing a verdict for defendant unless plaintiff was struck at a public crossing, held properly refused as confusing under the evidence.

Count C, after setting out that plaintiff was a minor under seven years of age, and that he was run over by a train in Chilton county, Ala., and suffered injuries which are set out, and which are declared to be permanent, avers that said injuries were proximately caused by the willful, wanton, or intentional conduct of Seymour Carleton, a servant or agent of defendant, Louisville & Nashville Railroad Company, while acting within the line and scope of his employment, which wanton, willful, or intentional misconduct consisted in this Said Carleton wantonly, willfully, or intentionally ran said train over plaintiff with the knowledge that plaintiff would probably be injured thereby, and with reckless disregard of the consequences. The accident happened while the child was on the track at or near a station or crossing.

The following charges were refused to defendant:

(3) If the jury believe that plaintiff was struck and injured at some place on defendant's track other than at Henderson's crossing, then you should return a verdict for defendant.
(4) Same as 3, except public crossing is substituted for Henderson's crossing.
(6) Under the evidence in this case plaintiff was a trespasser upon the track of defendant railroad company, and unless the jury is reasonably satisfied from the evidence that the fireman or engineer discovered plaintiff's presence upon the track, the verdict should be for defendant.
(5) If you are reasonably satisfied from the evidence that plaintiff was standing in the middle of defendant's railroad track on the occasion he complains of, but that the fireman on the engine and the engineer did not see him, your verdict should be for defendant.
(7) Even though you may believe from the evidence that plaintiff was struck by defendant company's railroad engine, and that he was upon the track when this was done yet if you further believe from the evidence that, owing to plaintiff's size or position upon the track, or for any other reason, the fireman did not see him, you should return a verdict for defendant.
(8) Affirmative charge as to defendant Carleton.
(10) Practically the same as 3.
(11) Verdict for the defendant unless the jury are reasonably satisfied that plaintiff was injured by being struck by an engine driven by Seymour Carleton while plaintiff was on the track at the Henderson crossing.
(12) Seymour Carleton was under no duty to ring the bell or blow the whistle until he saw that plaintiff was on or dangerously near the track.
(13) Declaring plaintiff was a trespasser.
(16) Practically same as 3.
(24) Practically same as 3.
(26) If, after a full and fair consideration of the evidence, the jury believe therefrom that it was a physical impossibility for plaintiff to have been struck on or near Henderson's crossing, and then dragged or carried to the point where plaintiff's arm and leg were cut off, you should return a verdict for defendant.

Frank Dominick, of Birmingham, and Smith & Gerald, of Clanton, for appellant.

Middleton & Reynolds, of Clanton, and W.A. Denson, of Birmingham, for appellee.


The amended complaint on which the trial was had was by appellee, Abernathy, against appellant, Louisville & Nashville Railroad Company, a body corporate, and its servant, Carleton. The cause was submitted to the jury upon simple negligence counts A and B and a willful or wanton count C. The defendant's plea was the general issue.

The affirmative charge as to count C was not requested by either defendant; hence the question of evidence supporting the charge upon this count against the defendant company was not thus raised or decided. The theory of defendant's demurrer to count C (the reporter will set out this count) on the ground of misjoinder is that the action was in case against the defendant company, and in trespass against the defendant, Carleton, the agent or engineer of the defendant company, operating the train at the time of the injury, and so acting in the line and scope of his employment.

At the outset we may observe that the common-law forms of action derived authority from the King's writ, and of necessity could not exceed that authority. No such conditions now obtain. Andrew's Stephens' Pl. 109, 121, 356, and appendix, note 2, p. 505; Munter v. Rogers, 50 Ala. 283, 291, 292; 1 Abbott's Trial Brief, Preface, 3, 4. The tendency of modern legislation is to dispense with much of the ancient formality required in pleading and often to leave only the name to be used for convenience. 1 Corpus Juris, 1003 et seq.; Code 1907, §§ 5321, 5329, 5340; Supreme Court Rule 45 (61 South. ix).

Under the old forms it was held that the remedy against the master who did not command or participate in or ratify the wrong, but who for his servant's negligence had the fault imputed to him, would be an action upon the case, while the action against the servant would be in trespass, and that these actions could not be joined. Chitty's Pl. (12th Ed.) 1828.

Appellee's counsel insist that the count sets up one cause of action against each defendant, either in trespass or upon the case. In Reynolds v. Clark, 1 Str. 634, the cause of action was for entering plaintiff's premises, and there fixing a spout by which water was carried into the yard of the plaintiff, rotting the walls of his house. Mr. Justice Fortescue said:

"If a man throw a log into the highway, and in that act it hit me, I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case, because it is only prejudicial in consequence, for which originally I could have no action at all."

Et per Reynolds, J.:

"The distinction is certainly right: This is only injurious in its consequence, for it is not pretended that the bare fixing a spout was a cause of action, without the falling of any water; the right of action did not accrue till the water actually descended, and therefore this should have been an action upon the case."

If the count be tested by this familiar and ancient English case, it was in trespass as to master and servant.

It must further be remembered throughout the consideration of the question before us that it has often been held by this court that a corporation, of necessity, acts through its officers, agents, servants, or employés; that, in fact, it can act in no other way. State v. Bristol Savings Bank, 108 Ala. 3, 18 So. 533, 54 Am.St.Rep. 141; Sullivan v. Sullivan Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; Beard v. U. & A.P. Co., 71 Ala. 60; So. L. & T. Co. v. Gissendaner, 4 Ala.App. 523, 58 So. 737; Hart v. Jones, (App.) 70 So. 206; Jasper Trust Co. v. K.C., M. & B.R.R. Co., 99 Ala. 416, 422, 14 So. 546, 42 Am.St.Rep. 75; Central of Ga. Ry. Co. v. Brown, 113 Ga. 414, 38 S.E. 989, 84 Am.St.Rep. 250; Hussey v. N.S.R. Co. and M.K. King, 98 N.C. 40, 3 S.E. 923, 2 Am.St.Rep. 312; D.R. Co. v. Harris, 122 U.S. 597, 7 SupCt. 1286, 30 L.Ed. 1146.

In a consideration of the demurrer to count C for misjoinder it is well to first examine the discussion of the text-books on this question. Mr. Gould then states the general rule of joinder of defendants as follows:

"If several persons join in committing a trespass, or tort of any kind, the party injured may generally, at his election, sue them jointly, or each or either of them in a several action, or any number of them less than the whole together (Bac.Abr. Pleas, etc., B, 2; Id. Actions in Gen. B; Carth. 171, 294, 361; 5 T.R. 649; Com.Dig. Abatement, F, 8; 6 Taunt. 29). For torts, in which several join, may be considered, in regard to the wrongdoers, either as wholly joint, or wholly several, or as joint in respect to part of them and several as to the others; since the act of any one of the wrongdoers may be regarded in law, either as his own sole act, or as the act of either, or of all, or of any number of them." Will's Gould on Pleading (6th Ed.) p. 390.

Mr. White says:

"Under the rule of joint and several liability of tort-feasors, not only different companies operating a railroad together will be jointly liable to an injured employé for the result of the negligence of the employés or of any of them (Harrill v. S. Car. & G.R. Co., 135 N.C. 601 ), but the employé whose negligence occasioned the injury may also be sued jointly with the principal or employer, or he may be sued alone. I.C.R. Co. v. Houchins [[[121 Ky. 526, 89 S.W. 530] 28 Ky.Law Rep.
499; 1 L.R.A.(N.S.) 375 [123 AmSt.Rep. 205]." 1 White's Personal Injuries, § 233.

The question is disposed of by Mr. Bailey in his recent work on Personal Injuries (volume 3, §§ 799, 800) as follows:

"The rules relating to proper and necessary parties, in actions for personal injuries caused by negligence, apply where the parties are employer and employé, the same as if the action was by one having no contract relations with defendant. The action is one ex delicto notwithstanding the duty violated by the master is one imposed by the contract of employment."

The author states as the general rule that;

"Where the

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