Metropolitan Life Ins. Co. v. Carter

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 223
• Citation: 102 So. 130,212 Ala. 212
• Parties: METROPOLITAN LIFE INS. CO. v. CARTER.
• Court: Alabama Supreme Court

102 So. 130

212 Ala. 212

METROPOLITAN LIFE INS. CO. v. CARTER.

6 Div. 223

Supreme Court of Alabama

October 23, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for assault and battery by D.G. Carter against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, page 450, Acts 1911. Reversed and remanded.

Cabaniss Johnston, Cocke & Cabaniss and Brewer Dixon, all of Birmingham, for appellant.

Leader & Ullman, of Birmingham, for appellee.

THOMAS J.

The suit is for damages for an assault and battery alleged to have been committed by an agent or employee of the defendant. The only eyewitnesses who testified were the plaintiff and said agent of defendant, who is alleged to have committed the injury for which complaint is made. Their evidence was in conflict, and susceptible to such inferences as might be drawn by the jury.

The first count of the complaint was not subject to the grounds of demurrer that were assigned. Mobile Light & R. Co. v Portiss, 195 Ala. 320, 332, 70 So. 136; Clinton Min Co. v. Bradford, 200 Ala. 308, 76 So. 74; Stoudemire v. Davis, 208 Ala. 592, 94 So. 498; Creighton v. Air Nitrates Corp., 208 Ala. 330, 94 So. 356. However, the count avers facts from which agency followed as a conclusion of law. Brown v. Comm. F. Ins. Co., 86 Ala. 189, 194, 5 So. 500. And the fact of such agency of Chesney was submitted to the jury. Written charge 7 is:

"In order for the plaintiff to be entitled to recover, you must be reasonably satisfied from the evidence that A.C. Chesney was a servant, agent, or employee of the defendant, and that the said A.C. Chesney assaulted the plaintiff while the said A.C. Chesney was acting within the line and scope of his duty as such employee and, if the evidence fails to so reasonably satisfy you of all these facts, your verdict should be for the defendant."

The instruction on the question in the oral charge is:

"If you are reasonably satisfied from the evidence that the defendant's servant or agent committed this assault and battery while acting within the line and scope of his employment, and that such act was the proximate cause of his alleged injury, then the plaintiff would be entitled to recover compensatory damages; that is, such damages as are the usual and ordinary result of the injury complained of."

In Jackson v. Vaughn, 204 Ala. 543, 545, 86 So. 469, 471, it is said:

"If an error has intervened in any matter of pleading or procedure in any civil case, the judgment following will not, on this account, be reversed, unless the court be of the opinion, as a matter of fact, that this error has probably injuriously affected substantial rights of the parties complaining. Supreme Court rule 45 (175 Ala. xxi, 61 South. ix). Under the mandate of this rule the fate of any judgment in a civil case that is tainted with error in the pleadings or procedure leading thereto is dependent upon what is disclosed by the entire record in that particular case. That is to say, each case stands upon its facts, and, of necessity, no ironclad principle can be announced of the construction to be placed on this rule. However, we may say that under it our court has declared generally that if a complaint (not so fatally defective that a judgment based thereon would be arrested on motion) or a plea in a civil cause be defective for the reason that a necessary allegation is omitted, and a demurrer pointing out this defect has been improperly overruled, the judgment following will not be reversed on this account, if the entire record discloses that the trial court by an appropriate charge instructed the jury specifically as to the necessity of proving the omitted allegation, and the record further shows that this omitted allegation was proved and considered."

If the complaint had been insufficient under the rule of Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D, 929, and Jackson v Vaughn, 204 Ala. 543, 86 So. 469, that ruling would have been without injury under the evidence and because of the foregoing instructions to the jury. The second count was not subject to the grounds of demurrer directed thereto.

Appellee's brief contains the following admission or statement:

"We are prepared to admit that there can be no separate recovery of a corporation for opprobrious words and epithets used by a servant or agent of the corporation in committing an assault and battery and we are thoroughly familiar with Singer Mfg. Co. v. Taylor (150 Ala. 574, 43 So. 210, 9 L.R.A. [[[[[[[N.S.] 929, 124 Am.St.Rep. 90); Republic Iron & Steel Co. v. Self (192 Ala. 403, 68 So. 328, L.R.A.1915F, 516); and Choctaw Coal & Mining Co. v. Lillich (204 Ala. 533, 86 So. 383, 11 A.L.R. 1014), but we submit that argument made on page 9 that the language used seeks a recovery separate and distinct from the assault based upon an oral defamation is not sustained by a reading of the averment in the count. The court did not, as contended by appellant, instruct the jury that opprobrious epithets could be made the basis of recovery. On the contrary, the court instructed the jury, record page 6, as follows: 'If you are reasonably satisfied from the evidence that the defendant's servant or agent committed this assault and battery while acting within the line and scope of his employment, and that such act was the proximate cause of his alleged injuries, then the plaintiff would be entitled to recover compensatory damages; that is, such damages as are the usual and ordinary result of the injury complained of. In estimating such damages the jury may consider any mental and physical pain and suffering, any humiliation, indignity, shame, or injury to his reputation that he may have been subjected to which directly ensued as a natural and proximate consequence of the wrong complained of."

The testimony giving the opprobrious words as used by the parties was admissible (1) to explain the character of the assault made, (2) as a part of the res gestae of the difficulty itself, and (3) as the basis for an inference whether or not the assault and battery was committed in the line and scope of Chesney's authority and in the prosecution of the master's business. Refused charge 13, requested by defendant, "I charge you that you cannot award plaintiff any damages because of humiliation or disgrace resulting from A.C. Chesney calling the plaintiff a 'crook,' or a 'damn crook,' " was misleading. South Brilliant Coal Co. v. Williams, 206 Ala. 637, 91 So. 589; Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Kress v. Lawrence, 158 Ala. 652, 47 So. 574; B.R., L. & P. Co. v. Norris, 2 Ala.App. 610, 56 So. 739.

The general affirmative charge was requested on the alleged authority of Wells v. Henderson Land & Lbr. Co., 200 Ala. 262, 76 So. 28, L.R.A.1918A, 115. The language used by Chesney immediately before the assault and battery was committed, "You know you are short, you damned crook," according to plaintiff's evidence, when referred to the whole evidence could only pertain to the master's business, or was susceptible of the inference that Chesney did not step aside wholly from the master's business to pursue a matter entirely personal. Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516; Birmingham Macaroni Co. v. Tadrick, 205 Ala. 540, 88 So. 858, Cent. Foundry Co v. Laird, 189 Ala. 584, 66 So. 571; Jebeles & Collias Conf. Co. v. Booze, 181 Ala. 456, 62 So. 12; Gassenheimer v. Western Ry. of Ala., 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; Case v Hulsebush, 122 Ala. 212, 26 So. 155. A jury question was presented. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. Defendant's refused charges 7 and 8 were fairly and fully covered by written charges given and in the oral charge of the court.

Assignments of error are based on improper argument of counsel appealing to a class prejudice. Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Anderson v. State, 209 Ala. 37, 43, 95 So. 171; Watts v. Espy (Ala.Sup.) 101 So. 106; A.G.S.R. Co. v. Grauer (Ala.Sup.) 102 So. 125.

In Wolffe v. Minnis, 74 Ala. 386, the objectionable argument condemned was:

"Judge Minnis, gentlemen, is a large-hearted, great-souled man, confiding and trusting. He is not one of those grasping men who keep a strict account of every cent they spend. If a poor widow should come to him, and tell him she was without bread, as quick as thought he would run his hand into his pocket, and, pulling out a ten dollar bill, would say to her, 'Here, take this, and go buy you a barrel of

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