Mobile & O.R. Co. v. Seals

• Decision Date: 08 November 1893
• Citation: 13 So. 917,100 Ala. 368
• Court: Alabama Supreme Court
• Parties: MOBILE & O. R. CO. v. SEALS.

13 So. 917

100 Ala. 368

MOBILE & O. R. CO. v. SEALS.

Supreme Court of Alabama

November 8, 1893

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Thomas Seals against the Mobile & Ohio Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

The complaint, as amended, was in the following language "The plaintiff claims of the defendant the sum of fifty thousand dollars, ($50,000,) for that heretofore, on, to wit the 17th day of February, 1892, the defendant, being then and there a corporation doing business as a railroad company, did operate a certain train of cars along a railroad track in the county of Mobile, state of Alabama, and the plaintiff avers that, while he was upon a truck of one of the cars composing said train, the defendant, or one of its servants or employes (whose name is unknown, and which he has diligently inquired for from the defendant) upon said train, did willfully recklessly, or wantonly fire a pistol at him, or did cause or allow a pistol to be fired at the plaintiff, so as to cause him to fall beneath the said train, and to be run over, and thereby crushed, so that it became necessary, by reason of his said injuries, to amputate both of his legs; and plaintiff avers that by reason of said injuries he has been permanently disabled for work, and that he has been put to much expense in and about his said cure, and to great suffering, both of body and mind, all to his great damage, to wit, the sum of fifty thousand dollars, ($50,000,) wherefore he sues." To this complaint the defendant pleaded the general issue and two special pleas, numbered 2 and 3. The third plea was stricken out, by motion of the plaintiff, as unnecessarily prolix, irrelevant, and frivolous. The second plea was in the following language: "(2) And the defendant, for further plea in this behalf, says, actio non because it says that the firing of said pistol at the plaintiff by its said agents and servants, while plaintiff was riding on a truck of a coach or car of the defendant, did not pertain to the business of the defendant, and was not done within the scope or range of the authority conferred by the defendant upon its said agents and servants in its service or employ. And defendant further avers that its said agents and servants had no express orders from it to fire said pistol at the plaintiff, and neither has the defendant ratified the same. All of when this defendant is ready and willing to verify," etc. After the demurrers to this second plea were overruled, the plaintiff filed several replications, the fourth and sixth being as follows "(4) For further reply to each plea by the defendant pleaded, the plaintiff, by leave of the court first had. says that the person who fired said pistol at him was the brakeman upon the train of the defendant upon which the plaintiff then was." "(6) For further reply to each of said several pleas, plaintiff says that the person who fired at the plaintiff was an employe of the defendant, and acted bona fide in the preservation and furtherance of the defendant's interest." To the fourth replication, the defendant demurred upon the following grounds: First, because the facts alleged therein did not present a legal defense to the matters alleged in said pleas; and, second, because there was no allegation in said replication that the brakeman was acting within the capacity or range of his authority, in firing a pistol at the plaintiff. To the sixth replication the defendant demurred on the following grounds: "(1) Because the bona fides or intention of the alleged employe of the defendant has no legal influence upon the question of defendant's liability; (2) because the mere intention with which the act was done by the alleged employe of the defendant does not render defendant liable in this action; (3) because said sixth replication fails to aver that said alleged employe of the defendant, in firing at the plaintiff, was acting within the scope or range of the authority conferred upon him by the defendant." The demurrers to these replications were each overruled, and the rulings thereon constitute the basis of some of the assignments of error on this appeal.

So far as is material to the consideration of the questions presented by this record, the testimony was substantially as follows: The plaintiff was a trespasser riding upon the trucks of one of the cars of the defendant, which left Whistler, Ala., on the night of the injury. Thomas Boltz was a brakeman on this train, and was instructed by the conductor to put the plaintiff off of the train, whereupon he took a pistol, and went to the side of the car, and waited until the movement of the train brought the plaintiff close to where he was standing, and then fired the pistol. The plaintiff and one witness testified that this brakeman, Thomas Boltz, pointed the pistol directly at the plaintiff, and fired; and the plaintiff further testified that he was shot by said Boltz, which caused him to fall from the trucks. On the other hand, one Humphries, a witness for the defendant, testified that, at the time the pistol was fired, it was pointed towards the ground. Instantly upon the firing of the pistol, the plaintiff fell from the trucks, under the cars, was run over, and both legs were so mangled and mashed that they had to be amputated. The physician who attended the plaintiff testified that plaintiff's legs were so mutilated that he could not tell by examination whether the plaintiff was shot or not.

Prior to the trial, the plaintiff propounded certain interrogatories to the defendant, which were headed as follows: "Interrogatories Propounded by the Plaintiff in the Above-Entitled Cause to the Defendant, Which the Defendant is Required to Answer under Section 2816, and under the Act of the General Assembly Approved February 27 1889." The act approved February 27, 1889, was in the following language: "Section 1. Be it enacted by the general assembly of Alabama. That whenever interrogatories shall be propounded to a corporation, under the...