Seaboard Air Line Ry. Co. v. Glenn

• Decision Date: 28 May 1925
• Docket Number: 7 Div. 555
• Citation: 104 So. 548,213 Ala. 284
• Parties: SEABOARD AIR LINE RY. CO. v. GLENN.
• Court: Alabama Supreme Court

104 So. 548

213 Ala. 284

SEABOARD AIR LINE RY. CO. v. GLENN.

7 Div. 555

Supreme Court of Alabama

May 28, 1925

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Action for assault and battery by G.S. Glenn against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

W.A Denson, of Birmingham, and Chas. O. Robinson, of Ashland, for appellee.

BOULDIN J.

The complaint is for recovery of damages "for an assault and battery committed on the plaintiff by J.H. Payne, a servant or agent of the defendant, while acting within the line and scope of his employment, on, to wit, December 5, 1921," describing the injuries sustained. This is the Code form adapted to the case in hand. Civil Code 1923, vol. 4, p. 505 form 18.

The questions presented on this appeal arise upon the refusal of certain affirmative instructions for defendant. The assault and battery was not denied. Was it within the line and scope of the employment? Payne was station agent of defendant, performing the general duties of freight and passenger agent at a railroad station.

The plaintiff's testimony was in effect that he was at the station with his wife and little boy to see them off as passengers at about 7 o'clock that morning. While waiting for the train, Payne passed with a wheelbarrow, carrying feed stuffs for his cattle. After the usual greetings, Payne notified plaintiff of the arrival of some freight for him, and requested plaintiff to come and remove it. Payne's business hours began at 8 o'clock, and soon after that time plaintiff returned to the station for his freight. Payne lived near the station, and on plaintiff's arrival he saw Payne engaged in making a fire under a pot back of his residence. Plaintiff called to him, and told him he had come for the freight. Payne replied "Come here just a minute." Plaintiff left his car and went in the direction of Payne's house. As plaintiff approached, Payne went into his house and presently came out with a pistol in his hand, advanced toward plaintiff, cursing and abusing him, and, without other words from plaintiff, struck him on the head or face with the pistol, inflicting the injuries complained of.

The evidence for defendant was to the effect that a few days theretofore Mrs. Payne, the agent's wife, had spoken to plaintiff, as trustee of the local school, about some alleged mistreatment of her child by other children at school; that on a second interview the plaintiff had spoken offensively to Mrs. Payne about the child and herself; that she had left plaintiff's store crying, and reported the matter to her husband; that on the occasion of the assault plaintiff came to where Payne was making the fire under the pot and in conversation asked Payne if his wife "came home crying the other day?" Payne replied "Yes; you insulted her and hurt her feelings," and asked that plaintiff apologize to her. Plaintiff declined to make apology. Payne then called to his wife, and again demanded an apology. When Mrs. Payne came out of the house plaintiff applied to her an insulting epithet, and again refused; whereupon Payne drew a pistol from his pocket and struck plaintiff therewith. Plaintiff denied using insulting words to Mrs. Payne at any time.

It thus appears without dispute that at the time the difficulty arose Payne was engaged in his back yard in purely private and personal employment. There is dispute in the evidence as to whether the hour of service under his employment as station agent had arrived, but there is no dispute that he was not then engaged in that service. The only service having any relation to the occasion was the delivery of freight. Plaintiff had come to the station on that business, but it is not claimed that such business had been entered upon by Payne. On the contrary, according to plaintiff' version he was called away from the station, and nothing in his testimony tends to connect the assault and battery with any controversy about the freight or its delivery.

The law of respondeat superior, as applied to assault and battery committed by the servant upon a third person, has been frequently considered and carefully announced by this court. In general phrase, the wrongful act must be done while acting within the line and scope of the employment. If so, the master is liable, whether the injury results from negligence wantonness, or willfulness of the servant. In extending the liability to a willful wrong, the motive behind the act does not defeat liability. If, therefore, while in the performance of a duty committed to the servant, he takes occasion to perform it in such rude or violent manner as to give vent to personal spite or ill feeling toward another by committing an assault upon him, the master is liable. Malice in law is the intentional doing of a wrongful act to the injury of another. A willful wrong may, and usually does, include malice in this legal sense. It follows that malice on the part of the servant, whether arising from general evil disposition or from personal ill will toward another, does not relieve the master from liability. The rule is based upon the broad principle that in committing the performance of a definite work to another the act of the servant in...