Mercury Freight Lines, Inc. v. Pharo

• Decision Date: 24 May 1956
• Docket Number: 6 Div. 16
• Citation: 87 So.2d 642,264 Ala. 322
• Parties: MERCURY FREIGHT LINES, Inc. v. Milton PHARO.
• Court: Alabama Supreme Court

Page 642

87 So.2d 642

264 Ala. 322

MERCURY FREIGHT LINES, Inc. v. Milton PHARO.

6 Div. 16.

Supreme Court of Alabama.

May 24, 1956.

Maurice F. Bishop and Robt. S. Richard, Birmingham, for appellant.

Ben. F. Ray and Ferris S. Ritchey, Jr., Birmingham, for appellee.

LAWSON, Justice.

This is a suit by Milton Pharo against Mercury Freight Lines, Inc., a corporation, to recover damages for an assault and battery alleged to have been committed on him on August 21, 1953, by Durwood J. Sharron, an agent or employee of defendant corporation, while acting in the line of his duty and within the scope of his employment as such agent or employee.

The cause was tried upon the one count of the complaint and the defendant's plea of the general issue in short by consent in the usual form. The trial resulted in a verdict in favor of the plaintiff for $10,000. The judgment was in accord with the verdict. The defendant's motion for new trial being overruled, it has appealed to this court.

The most general argument in brief for appellant restricts our review on this appeal to a narrow compass. The only contention, it seems, is that the trial court erred in overruling those grounds of the motion for new trial which, in effect, took the point that the verdict and judgment are contrary to the great weight of the evidence.

It is without dispute that on the afternoon of August 21, 1953, Sharron inflicted serious injury to plaintiff with a knife at the defendant's freight terminal in the city of Birmingham. The cut extended from plaintiff's left forehead through the eyeball of his left eye, through his nose to the right cheek. As a result of the cut plaintiff has lost all vision in his left eye and he is permanently scarred.

But appellant argues that the verdict and judgment against it should have been set aside because the evidence fails to show that Sharron at the time of the difficulty with plaintiff was acting within the line and scope of his employment.

The law of respondeat superior as applied to assault and battery committed by the servant upon a third person has been frequently considered and carefully announced by this court. In Seaboard Air Line R. Co. v. Glenn, 213 Ala. 284, 285, 104 So. 548, 549, we said in part as follows:

'* * * In general phrase, the wrongful act must be done while acting within the line and scope of the employment. If so, the master is liable, whether the injury results from negligence, wantonness, or willfulness of the servant. In extending the liability to a willful wrong, the motive behind the act does not defeat liability. If, therefore, while in the performance of a duty committed to the servant, he takes occasion to perform it in such rude or violent manner as to give vent to personal spite or ill feeling toward another by committing an assault upon him, the master is liable. Malice in law is the intentional doing of a wrongful act to the injury of another. A willful wrong may, and usually des, include malice in this legal sense. It follows that malice on the part of the servant, whether arising from general evil disposition or from personal ill will toward another, does not relieve the master from liability. The rule is based upon the broad principle that in committing the performance of a definite work to another the act of the servant in doing that work is the act of the master. The policy of the law is to hold the master responsible for the torts of the servant in such case, although in fact the tort was committed against the will of the master and in violation of his rules or instructions.

'But outside of the scope of employment the servant is his own master, responsible alone, as other persons, for his wrongs. To bind the master the abuse must be perpetrated 'in the line of the duties assigned' to the servant; the act must be 'done in and about the business or duties assigned' to him; must be 'while acting within the range of the authority of the employment'; must be 'fairly incident to the employment,' within the zone of duty measured by the work committed to him.'

The application of the rule is illustrated in the cases cited in Seaboard Air Line R. Co. v. Glenn, supra.

At the time of the difficulty with the plaintiff Sharron was a stockholder and vice-president of the defendant corporation, in charge of the hiring and discharge of truck drivers. The amount of the compensation to which the truck drivers were entitled was subject to Sharron's approval in some respects.

The plaintiff had been in the employ of the defendant company for approximately four months prior to the time he was injured. He had been employed by Sharron and had leased his truck to the defendant corporation to be used in connection with trailers owned by the corporation in the hauling of freight. The tendencies of the evidence offered by the plaintiff are to the effect that some time between 8:30 and 9:00 on the morning of August 21, 1953, the...