Republic Iron & Steel Co. v. Self

Decision Date22 April 1915
Docket Number26
Citation68 So. 328,192 Ala. 403
CourtAlabama Supreme Court

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

Action by Burtie Self, by next friend, against the Republic Iron &amp Steel Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Transferred from the Court of Appeals under section 6, Acts 1911, p. 450.

Percy Benners & Burr, of Birmingham, for appellant.

Harsh &amp Beddow and A. Leo Oberdorfer, all of Birmingham, for appellee.


The cause was submitted on count 1 which claimed that:

"While plaintiff was in said commissary or store, in or about transacting business with the defendant, which business was conducted by the defendant in said commissary or store one of the defendant's servants or agents, whose duty it was, on behalf of the defendant, to wait upon those having business with the defendant in said commissary or store, wrongfully used abusive or insulting language towards plaintiff while both were in said commissary or store and plaintiff was engaged in or about said business with said defendant in said commissary or store, and as a proximate consequence thereof plaintiff was greatly humiliated, suffered great mental and physical pain and anguish, was caused to prematurely leave said commissary or store, and was put to great trouble, annoyance, vexation, inconvenience, and expense in or about transacting said business, for all of which plaintiff claims damages, and plaintiff also claims punitive damages."

This is not a suit for slander. If it were such, no recovery could be had under this evidence, for it is well settled in this jurisdiction that a corporation will not be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it be proved that the corporation expressly ordered and directed that officer to say those very words; for a slander is the voluntary and tortious act of the speaker. McIntyre's Case, 179 Ala. 404, 60 So. 848; Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 So. 210, 9 L.R.A. (N.S.) 929, 124 Am.St.Rep. 90.

The suit is for damages for using abusive and insulting language to plaintiff while in defendant's commissary store. The questions and answers as to the tone and manner in which the words were spoken were competent. Whether or not words spoken by one person to another are to be regarded as abusive and offensive or insulting, or whether an act amounted to an assault or otherwise, depends largely upon the manner or the tone of voice of the speaker. Barlow et al. v. Hamilton, 151 Ala. 634, 44 So. 657; Hill v. State, 146 Ala. 51, 41 So. 621; Riley v. State, 132 Ala. 13, 31 So. 731; A.G.S.R.R. Co. v. Pouncey, 7 Ala.App. 548, 554, 61 So. 601.

The undisputed evidence and the charges requested by defendant, and refused by the court, present for decision the questions: (1) Whether there was a duty upon the keeper of a commissary to protect appellant from such indignity while in the store; (2) whether abusive words unaccompanied by acts that amount to an assault constitute a cause of action against the owner of the store.

The rule of--let the principal answer--respondeat superior applies only when what is complained of was done in the course of the employment. The principal is responsible, not because the servant acted in his name, or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is, then, responsible, because the thing complained of, though done through the agency of another, was done by himself; and it matters not in such cases whether the injury with which it is sought to charge him was the result of negligence, or of unskillful or wrong conduct, for he must choose fit agents for the transaction of his business. 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. Haehl v. Wabash R. Co., 119 Mo. 325, 24 S.W. 737; State v. Gillespie, 62 Kan. 469, 63 P. 742, 84 Am.St.Rep. 411; So. Ry. Co. v. Morrison, 105 Ga. 543, 31 S.E. 564; 34 Cyc. 1673. In Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 1 L.R.A. (N.S.) 653, this court said:

"It the servant step aside from his master's business, for however short a time, to do an act not connected with his master's business, the relation of master and servant for the time is suspended." Cooley on Torts, § 533 et seq.

In Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727, the rule was thus stated:

"The act must be, not only 'within the scope of the employment,' but also 'committed in the accomplishment of the objects within the line of his duties, or in and about the master's business or duties assigned to him by his employer.' "

The case of Hardeman v. Williams, supra, is much like that for decision in this case. The agent of the defendant went with an officer to the plaintiff's house to assist the officer in taking some furniture under a writ of detinue sued out by the defendant, and while there the constable and the plaintiff got into a quarrel over a remark made by the plaintiff with respect to a matter having no connection with taking the furniture or the execution of the writ, and, in assisting the officer, defendant's agent committed a battery on plaintiff. The court held that it did not appear that the agent committed the assault in the course and within the scope of his employment, and that his principal was not liable therefor.

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

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