Miller-Brent Lumber Co. v. Stewart

• Decision Date: 16 December 1909
• Citation: 51 So. 943,166 Ala. 657
• Parties: MILLER-BRENT LUMBER CO. v. STEWART.
• Court: Alabama Supreme Court

51 So. 943

166 Ala. 657

MILLER-BRENT LUMBER CO. v. STEWART.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Action by M. G. Stewart against the Miller-Brent Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The following charges were refused the defendant: (1) General affirmative charge. (4) "The court charges the jury that, although they may believe that one was authorized to go through the gate in question, yet such authority did not carry with it authority to assault the plaintiff in attempting to go through; and, if Vaughan assaulted plaintiff without authority from the defendant, then the defendant is not liable for such assault." (5) "Before the jury can find for the plaintiff, you must believe from the evidence that Vaughan had authority from defendant, express or implied, to commit the assault." (9) "The court charges the jury, if you should find for the plaintiff, your verdict should be only for actual damages." (10) "The court charges the jury that the plaintiff cannot recover vindictive damages in this case." (6) "If Vaughan assaulted the plaintiff as a result of anger aroused by the conduct of the plaintiff, then the defendant would not be liable."

The following excerpts from the oral charge of the court were objected to: (1) "If Mr. Mark Miller gave Vaughan orders to go through the gate of the plaintiff, and if conforming to these orders was calculated to produce a difficulty, and if Mr. Mark Miller knew this, and if in carrying out such instructions Vaughan assaulted the plaintiff, then the defendant would be liable in this action." (2) "On the same hypothesis, the jury, if they find for the plaintiff, would be authorized to award punitive damages in addition to the actual damages sustained."

W. O Mulkey and Coleman, Dent & Weil, for appellant.

C. E Reid and R. H. Jones, for appellee.

McCLELLAN J.

Action for damages for an assault and battery alleged to have been committed on appellee by an agent or servant, one Vaughan, of the appellant.

The chief question raised below and argued for appellant here is whether there was any evidence tending to support the averment that in so assaulting the plaintiff Vaughan was acting within the line and scope of his employment. It was admitted that at the time of the occurrence Vaughan was in the defendant's employ. It was further shown by tendencies of the evidence that Vaughan with several teams and teamsters, was en route to haul logs for their master; that, in conceived right, they proposed to enter a gate maintained by plaintiff and cross his lands with the teams, and to haul logs thereover, and place them in a pond claimed to have been theretofore leased for logging purposes by defendant from plaintiff; that plaintiff had locked the gate in evident anticipation of the coming of defendant's servants; that one or all of the teamsters stopped at the locked gate, whereupon Vaughan directed one of them to break the gate; that plaintiff was present and remonstrated; that plaintiff denied the defendant's right to enter and cross his premises, and Vaughan, in reply asserted that right as for defendant; that one of the men broke the gate, whereupon plaintiff planted himself in the opening, and struck the animals of the first wagon; that Vaughan took hold of plaintiff and threw him, or he fell, Vaughan beating him; that a little later, regaining his feet, plaintiff again got in the gate with a knife in his hand, whereupon Vaughan struck him with an axe handle, again felling him and inflicting thereby serious and painful injuries upon him.

The plaintiff, testifying as witness, was asked: "State whether or not Vaughan, just before this trouble, told you that Mr. Mark Miller told him (Vaughan) to go through the gate in question?" It was shown that Miller was the active general manager of the defendant. The question was not illegal on its face, because too remote in point of time from the altercation and its attendant circumstances, since, if immediately preceding the effort to enter the gate and on that occasion the statement was made, it was of the res gestæ of the event. The court might reasonably have placed that construction upon the question, and on that theory committed no error in admitting the declaration. Furthermore, its illegality or incompetency (it could not have been immaterial) may depend upon the agency of Vaughan on the occasion. That his agency vel non was open to the jury's inference we do not think there can be any serious doubt. The whole circumstances tend to show it. He was an employé of the defendant. He was accompanying the defendant's wagon train. Cravey, a teamster, invoked his protection in response to Vaughan's instruction to him to break the lock, and Vaughan himself examined the gate before it was broken. His every act was that of one in authority, and the teamsters, it is readily inferable, obeyed his, at least implied, order to enter when the gate had been forcibly opened. He asserted the defendant's right to enter evidently for the purpose indicated by the several wagons. In holding upon this state of fact the issue of agency vel non a jury question, we are within the principle of Robinson v. Greene, 148 Ala 434, 43 So. 797, and cases therein cited. On such an issue, where the fact rests in parol, and there are in evidence other facts or circumstances tending to show agency, the declarations of the alleged agent are admissible. Robinson v. Greene, supra. If Vaughan was...