Palos Coal & Coke Co. v. Benson

Decision Date21 December 1905
Citation39 So. 727,145 Ala. 664
PartiesPALOS COAL & COKE CO. v. BENSON.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"Not officially reported."

Action by Will Benson against the Palos Coal & Coke Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Plaintiff sues for $5,000 damages for an assault and battery committed by one of the defendant's servants or agents, and avers that the agent of defendant, whose name is John Kelley, was then and there acting in the line of his said agency. The second count is for an assault and battery by the same person, and it alleges a willful, wanton, or intentional injury to plaintiff by striking him on the head with a hard substance by Kelley, who was superintendent and while in the exercise of such superintendence. The third count is the same as the first count. The proof showed that Kelley was the superintendent of all the defendant's mines at Palos, and that as such superintendent he had other superintendents under him. The plaintiff was a driver of cars for defendant and while driving the car, and while Kelley was riding on his car, he struck him.

Ward &amp Drennen, for appellant.

Shugart & Bell, for appellee.

SIMPSON J.

It is undoubtedly the law of this state, under former decisions that a master, whether corporate or individual, is liable for the torts of the servant or employé, "done or caused to be done in or about the duties or business assigned to them"; but it is equally clear that this liability is "confined to abuses perpetrated in the line of duties assigned them." The act must be, not only "within the scope of his employment," but also "committed in the accomplishment of objects within the line of his duties, or in and about the business or duties assigned to him by his employer." L. & N. R. R. Co. v Whitman, 79 Ala. 328; M. & O. R. R. Co. v. Seales, 100 Ala. 368, 13 So. 917; Case v. Hulsebush, 122 Ala. 212, 221, 26 So. 155; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389.

In the case at bar the only proof as to what were the duties of John Kelley (who, it is claimed, by inference, without direct proof, made the assault) is by the plaintiff himself, that "he was general superintendent of all the defendant's mines at Palos. He had superintendents under him. Mr. Hemphill was the boss driver, or bank boss over me. Mr. Kelley would just look around in the mines, and tell the other superintendents under him what to do. The bank boss has the superintendence and management...

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26 cases
  • Whiteaker v. Chicago, Rock Island & Pacific Railway Co.
    • United States
    • Missouri Supreme Court
    • November 24, 1913
    ... ... Ice Co., 73 N.Y ... 543; Clancy v. Barker, 131 F. 161; Coal & Iron ... Co. v. Barrie, 179 F. 50; Davenport v ... Railroad, 72 ... 394; Electric Co ... v. Hodges, 6 Ga.App. 470; Coal & Coke Co. v ... Benson, 145 Ala. 664; Marlowe v. Bland, 154 ... N.C. 140; ... ...
  • Mobile & O.R. Co. v. Williams
    • United States
    • Alabama Supreme Court
    • March 21, 1929
    ... ... rear car, which was a gondola or coal car; that McKenna from ... his position on the ground looked at the cars ... business or duties assigned him. Palos Coal Co. v ... Benson, 145 Ala. 664, 39 So. 727. This was properly ... Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala ... 336, 30 So. 600, was a suit under the ... ...
  • Anderson v. Southern Cotton Oil Co.
    • United States
    • Florida Supreme Court
    • February 23, 1917
    ... ... Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.) ... 653; Palos Coal & Coke Co. v. Benson, 145 Ala. 664, ... 39 So. 727; City Delivery ... ...
  • Cain v. Skillin
    • United States
    • Alabama Supreme Court
    • March 21, 1929
    ... ... Rochester-Hall Drug Co. v. Bowden (Ala. Sup.) 118 ... So. 674; Palos Coal & Coke Co. v. Benson, 145 Ala ... 669, 39 So. 727; Gulf, M. & N. R ... ...
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