National Life & Accident Ins. Co. v. Cruso

• Decision Date: 18 June 1927
• Docket Number: 6 Div. 870
• Citation: 113 So. 396,216 Ala. 421
• Court: Alabama Supreme Court
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. CRUSO.

113 So. 396

216 Ala. 421

NATIONAL LIFE & ACCIDENT INS. CO. v. CRUSO.

6 Div. 870

Supreme Court of Alabama

June 18, 1927

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages by Zella Cruso against the National Life &amp Accident Insurance Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Wm. A Jacobs, of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellee.

BOULDIN J.

The evidence for plaintiff tended to show that an agent of the defendant insurance company went to see her touching a claim which she had presented for a sick benefit under a policy of insurance in the company, and in the course of their interview the agent thrust or inserted a teaspoon into plaintiff's swollen throat, causing abrasion and injury.

The first count of the complaint is for assault and battery, a trespass by direct act of the corporate defendant.

There is no evidence that the act complained of was by any managing officer of the company, by his direction, or with his knowledge and acquiescence. Nor is there any evidence of ratification of an assault and battery on the plaintiff. The evidence was that the local agent, not a physician, was sent by the superintendent to give notice of rejection of the claim, or to see her about the claim. The defendant was due the affirmative charge as to this count. Its refusal was error. Ex parte L. & N.R. Co., 203 Ala. 328, 83 So. 52; Ex parte Central Iron & Coal Co., 212 Ala. 130, 101 So. 824; City Delivery Co. v. Henry, 139 Ala. 161, 34 So 389.

The second count is in case, based upon the doctrine of respondeat superior. It charges that defendant was in the insurance business; that plaintiff was a policy holder; and that defendant's servant or agent, while acting within the line or scope of his employment, negligently injured plaintiff's throat by thrusting a spoon into the same, lacerating and injuring same as the proximate consequence of such negligence, etc.

Demurrer going to the point that no relationship is shown from which a duty of care arose; that the averment of negligence is general and a mere conclusion, was not well taken. A duty of care is present in all cases where one person proceeds by direct act to manipulate the person of another. The nature of the injury is expressly averred. Demurrer to this count was properly overruled....