Shope v. Alabama Fuel & Iron Co.

• Decision Date: 25 November 1915
• Docket Number: 7 Div. 724
• Citation: 70 So. 279,195 Ala. 312
• Parties: SHOPE v. ALABAMA FUEL & IRON CO.
• Court: Alabama Supreme Court

70 So. 279

195 Ala. 312

SHOPE v. ALABAMA FUEL & IRON CO.

7 Div. 724

Supreme Court of Alabama

November 25, 1915

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Action by Mrs. Ola Shope against the Alabama Fuel & Iron Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Wheeler & Whitaker and A.G. & E.D. Smith, all of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

GARDNER J.

Appellant brought suit against appellee to recover damages for an alleged assault and battery committed on her by an agent or agents of the defendant company while acting within the line or scope of their authority. No question of pleading is presented. There was no special plea filed, and the cause appears to have proceeded to trial upon plea of the general issue. Considerable testimony was offered both by the plaintiff and defendant, and upon the conclusion of all the evidence the court gave, in writing, at defendant's request, the general affirmative charge in its behalf, and which action constitutes the sole assignment of error.

It seems to be conceded by counsel for the respective parties in their briefs that the affirmative charge was given upon the theory that there was no evidence tending to show that one Self, or other agent of defendant company, acted, in regard to the matter complained of, within the line and scope of his authority, and that therefore no liability could attach to defendant.

The record shows that one A.M. Self was appointed a deputy sheriff by the sheriff of St. Clair county, and that he received no compensation from said sheriff, and was paid a regular salary by the defendant company to perform duties for them at their mining camp, called "Margaret." He was appointed a deputy upon the request of either Deloney the superintendent of mines at Margaret, or De Bardeleben the vice-president and general manager of defendant company. Said Deloney was a notary public and ex officio justice of the peace. The only compensation received by said Self was the sum of $90 a month paid by defendant company, and such fees as he might receive through said Deloney's court.

The matters complained of by the plaintiff grew out of an alleged assault on her by said Self on June 21, 1914. Counsel for appellee insist that all arrests, assaults, and acts of like character committed by a publiC officer who receives his compensation from a private corporation are prima facie committed by him in his official capacity, and not as a servant of the corporation. McKain v. B. & O.R.R Co., 65 W.Va. 233, ^[1] 23 L.R.A.(N.S.) 289, 131 Am.St.Rep. 964, 17 Ann.Cas. 634; Penn.R.R. Co. v. Kelly, 177 F. 189, 101 C.C.A. 359, 30 L.R.A.(N.S.) 481; Layne v. C. & O.R.R. Co, 66 W.Va. 607, 67 S.E. 1103. This general proposition does not appear to be controverted by counsel for appellant, and, indeed, no reference thereto is found in their brief. They insist, however, that the evidence was sufficient for submission to the jury that Self was acting in the line and scope of his authority at the time of the alleged assault. Speaking to the question of law above noted, as asserted by counsel for appellee, the West Virginia court, in Layne v. R.R. Co., supra, recognizing the above-stated rule as correct to the effect that prima facie such public officer acts in his public capacity, said:

"If he was engaged in some sort of service for the corporation and did a wrongful act in the course of such service, and within the scope of his employment, or by express direction of his employer, the latter is liable. *** But there is frequently contradictory evidence as to employment, the nature and extent of the service, and other matters pertaining to the authority or lack of authority in the officer to act on behalf of the defendant, and in all such cases the jury must determine whether there is liability or not. *** The defendant is not liable merely because it procured the appointment of the officer or pays his salary or does both. *** From these propositions it results, as a necessary sequence, that the plaintiff has the burden of showing the express or implied authority in the officer to perform the injurious act for and on behalf of the defendant. As such authority may be express, as by request or direction, or implied, as by employment of the officer and inclusion of the act, of which the killing was an incident, within the scope of the service to be rendered, it is sometimes necessary to seek it in a mass of contradictory oral evidence and inconclusive, but relevant, circumstances. These are general principles of the doctrine of respondent superior, not materially altered or varied by the fact that the servant is also a public officer. This additional circumstance simply raises a question as to the capacity in which the party holding the two positions at the same time acted, and often forms the basis of an hypothesis for jury consideration which would not otherwise exist. *** If the plaintiff would fix liability upon another for his act, he must prove the relation of master and servant. That he was a public officer is beyond question, but it does not follow that he was not also a servant, nor that he acted as a public officer, and not as a servant, in the transaction to which the killing was incident. The real issue was whether Howery acted on behalf of the company or the public in the transaction between himself and Layne in which the latter was incidentally killed. At the time of this transaction he was both officer and servant, and, in general, acting as such. The jury question was the capacity in which he acted in that particular transaction."

It appears that the court in the above-cited case recognized as a general proposition that, when the capacity in which a person acts when occupying the dual position of public officer and corporation servant is uncertain and dependent upon conflicting testimony and inconclusive facts and circumstances, the question is one for the determination of a jury.

That Self in the instant case was an agent or servant of the defendant company is without dispute. The question for determination here, therefore, is whether or not he was acting as a public officer for and on behalf of the public, or acting on behalf of the company employing him and within the line and scope of such employment. In the recent case of Republic I. & S. Co. v. Self, 68 So. 328, it was said:

"In this class of cases, to authorize the submission of the question to the jury, the evidence must tend to show that the wrong was committed by the agent while he was executing his agency, and not from a motive or a purpose of his own, having no relation to the business of the master. If the evidence tends to show that it was an incident to carrying on the master's business, the master may be held liable, though he did not authorize the agent to resort to such means in rendering the service for which he was employed.

And in Hardeman v. Williams, 169 Ala. 57, 50 So. 794:

"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. The legal aspect of such a case is not changed because the agent superadds malice or other personal motive to his wrongful act."

Frequent reference is found in the cases to that of Case v Hulsebush, 122 Ala. 212, 26 So. 155, in which case the tax collector of Mobile county was held personally liable for an assault and battery committed by his deputy on a taxpayer who had gone to the collector's office to pay his taxes. The assault in that case grew out of a dispute about a fee the deputy sought to collect. In the more recent case of Gassenheimer v. West. Ry. of Ala., 175 Ala. 319, 57 So. 718, 40 L.R.A.(N.S.) 998, it was...