National Baking & Lunch Co. v. Wilson

• Decision Date: 11 May 1916
• Docket Number: 6 Div. 276
• Parties: NATIONAL BAKING & LUNCH CO. et al. v. WILSON.
• Court: Alabama Supreme Court

73 So. 436

198 Ala. 90

NATIONAL BAKING & LUNCH CO. et al. v. WILSON.

6 Div. 276

Supreme Court of Alabama

May 11, 1916

Rehearing Denied Dec. 30, 1916

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Will Wilson against the National Baking & Lunch Company and Herman Fisch, for damages for injuries received. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Gardner and Thomas, JJ., dissenting.

Haley &amp Haley, of Birmingham, for appellants.

Beddow & Oberdorfer, of Birmingham, for appellee.

SAYRE J.

This action was brought against two defendants, one a natural person, the other a corporation. It is reasonable to assume that the pleader intended to charge defendants as joint tort-feasors, but, considering the peculiar nature of the wrong charged, the unusually meager and uncommunicative phraseology of the first count must be noted. As amended this count, when it came to a statement of the gist of plaintiff's action, alleged that "the defendants negligently threw a plate which struck the plaintiff." A corporation may be liable for the damage done by a plate negligently thrown, but it cannot throw a plate unless the act be done by authority of a resolution of its governing board or by some alter ego or vice principal. Such a corporate act as that charged is not impossible, however and, taking the count at its face value, it purports to charge that the defendant corporation and the natural defendant, acting in concert, threw the plate that damaged plaintiff. But no other association between the defendants is alleged. It is well enough, in suits against a corporation alone, after showing duty, to aver merely that it negligently did the wrong complained of. Negligence being charged, the action is in case by whatever character of agency the negligent act was done, and it is immaterial to the defendant whether its sole responsibility be determined on the ground that it was in law a surety for the conduct of its servants, or on some other ground. But if plaintiff intended to proceed against the defendants as for a joint liability on the ground that Fisch was the active agent in the premises and represented the defendant corporation in some capacity, then, for reasons to be stated hereafter, it was a matter of some concern to the defendants to be informed and have the record show what plaintiff intended to charge the connection between them to be. In that case the relation between the defendants, the manner of the defendant corporation's participation in the tortious act, should not have been left to inference; it should have been made plain. However, it cannot be affirmed as matter of law on the face of the count that it was impossible that both defendants participated in the single act charged in a manner to constitute it in law the joint act of agencies otherwise unassociated. Reading the count as we have indicated, it was not open to objection for misjoinder of causes or parties.

Nor was there any misjoinder in the third count which charged a trespass vi et armis, to wit, "an assault and battery committed by the defendants." Much the same considerations as those noted above apply to this count. We think the necessary construction of this count is that the defendants were jointly liable; Fisch because he did assault and beat plaintiff, the defendant corporation because Fisch was at the time acting as its alter ego or vice principal. Each count must be construed by itself, but it is not without interest in this connection, as showing the probable nature of the transaction, to note that in count 2, as amended, it was alleged that Fisch was president, manager, or director of the defendant corporation.

But count 4 of the complaint cannot be sustained against the demurrer without forcibly breaking away from substantial considerations upon which this court has heretofore placed its rulings that the master and his mere servant, or principal and agent as the count states the case, cannot be joined in the same count, based upon the unauthorized trespass of the servant, committed in the performance of a lawful duty commanded by the master. This count claimed damages of the defendants for that, "the defendant, National Baking & Lunch Company's agent, Herman Fisch, acting within the line and scope of his authority as such, assaulted and beat the plaintiff." As against the defendant Fisch, the count states an action of trespass; as against the defendant corporation, it proceeded, manifestly, on the principle of respondeat superior. The liability of Fisch under this count is direct; the liability of the defendant corporation is based, as was pointed out by Judge Head in Southern Bell Telephone v. Francis, 109 Ala. 224, 242, 19 So. 1, 7 (31 L.R.A. 193, 55 Am.St.Rep. 930), not directly upon the tortious act of its servant, but upon the duty it owed the public to have in its employment only servants who would perform their services in a lawful and proper way. This difference in the nature of the two liabilities inheres in the facts, and its existence as a fact is beyond dispute. In the case just referred to it was said, arguendo, that:

"Where the liability of the master arises from an unauthorized trespass of the servant, committed in the performance of a lawful duty commanded by the master, a joint action against the master and servant will not lie, for the reason that the action against the master is case, while that against the servant is trespass; and for the further reason that, the wrong proceeding directly from the servant, and not directly from the master, the latter, if compelled to pay the damages, would have an action over against the former; but he would not, at common law, be entitled to such an action where the judgment went against both as joint tort-feasors."

The statute (Code, § 5329), enacted...