New Morgan County Building & Loan Ass'n v. Plemmons

• Decision Date: 08 November 1923
• Docket Number: 8 Div. 495.
• Citation: 98 So. 12,210 Ala. 286
• Parties: NEW MORGAN COUNTY BUILDING & LOAN ASS'N v. PLEMMONS.
• Court: Alabama Supreme Court

98 So. 12

210 Ala. 286

NEW MORGAN COUNTY BUILDING & LOAN ASS'N v. PLEMMONS.

8 Div. 495.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Lillian M. Plemmons against the New Morgan County Building & Loan Association. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. W Godbey, of Decatur, for appellant.

Sample & Kilpatrick, of Hartselle, for appellee.

THOMAS J.

The suit is by a wife to recover damages for trespass and punitive damages for injury to her person. In Engle v Simmons, 148 Ala. 92, 41 So. 1023, 7 L. R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740, it was declared that, irrespective of the ownership of the house, the wife must sue for personal injuries to her inflicted without physical violence by one entering the house occupied by herself and husband. Parker v. Newman, 200 Ala. 103 107, 75 So. 479. In Republic Iron & Steel Co. v. Self, 192 Ala. 403, 406, 407, 408, 68 So. 328, 329 (L. R. A. 1915F, 516), the court said:

"But if his business is done, or is taking care of itself, and his servant not being engaged in it, nor concerned about it, but impelled by motives that are wholly personal to himself, and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when such an act has and can have no tendency to promote any purpose in which the principal is interested, and to promote which the servant was employed, then the wrong is the purely personal wrong of the servant, for which he alone is responsible. *** The question again came before the court in Hardeman v. Williams, 169 Ala. 50, 53 So. 794, where under an amended complaint it was held, under the facts of the former appeal, that a question for the decision of the jury was presented. Mr. Justice Sayre said: 'The principal is responsible for the acts of his agent done within the scope of his employment, and in the accomplishment of objects within the line of his duties, though the agent seek to accomplish the master's business by improper or unlawful means, or in a way not authorized by the master, unknown to him, or even contrary to his express direction.' *** In the case before us the evidence shows that the offensive words were used by Mr. Wall, not as appellant's agent, in the doing of an act of the agency, nor as incidental to the carrying on of his master's business, but simply as the result of his own feeling of resentment at appellee's remark about his individual character. ***"

In the instant case there was more than mere offensive words ( L. & N. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R. 251; Republic Iron & Steel Co. v. Self, supra); there was the continuing act, the presence against the will of plaintiff in her home and the offense to her therein by act as well as words. In New Morgan County Building & Loan Association v. Plemmons (Ala. Sup.) 97 So. 46, the affidavit, claim bond, order quashing same on motion of said loan association, and its indemnifying bond given the sheriff, were held competent as tending to show that defendant knew Mrs. Plemmons claimed the property, and that it induced the sheriff to levy the writ of attachment. Though this action was after the time of the alleged trespass on the part of Dix, it had a tendency to show in what capacity the latter acted on the occasion of the alleged trespass-whether in his individual capacity, or as defendant's agent, or that of the original landlord. Tenn. Valley Bank v. Valley View Farm et al. (Ala. Sup.) 97 So. 62; that is to say, the foregoing was competent evidence, when taken in connection with the testimony of plaintiff's husband, who said:

"I rented it from T. M. Dix. He was the agent for the defendant, the Building & Loan Association. I rented it from the Building Association through T. M. Dix, as agent. I paid the rent to T. M. Dix, or at his office. He said he was collecting these rents as the agent for the

Building & Loan. I remember the day he was at our house, and the time, and my wife's condition afterwards. After that time Dix and I had a little talk about the payment of the rent. That was after this trouble occurred, when we had a little talk about it. There was an attachment issued later to collect this rent. I know of no part that Mr. Dix took in the attachment proceeding, other than he was helping to run the attachment and helping to work it up."

The affirmative charge is properly refused, when there are inferences that may be drawn from the evidence unfavorable to the party to the suit requesting such charge, and in determining the propriety of the general charge the evidence against whom it is given must be taken as true. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. The attachment proceeding to collect the same rent that was due, and which Dix was trying to collect at plaintiff's house on the occasion in question, together with plaintiff's testimony that he said the rent was due the New Morgan County Building & Loan Association; that "he would have to take the furniture, after he asked what furniture I had; *** would have me put out in the street with my children, and if my husband objected he would have him arrested; *** he would levy on the furniture and everything we had, and leave...