Southern Ry. Co. v. Hanby

• Decision Date: 07 April 1910
• Citation: 52 So. 334,166 Ala. 641
• Parties: SOUTHERN RY. CO. v. HANBY.
• Court: Alabama Supreme Court

52 So. 334

166 Ala. 641

SOUTHERN RY. CO. v. HANBY.

Supreme Court of Alabama

April 7, 1910

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by S. M. Hanby against the Southern Railway Company and another. From a judgment for plaintiff, defendant named appeals. Reversed and remanded.

Weatherly & Stokely, for appellant.

Frank S. White & Sons, for appellee.

SAYRE J.

Appellee sued the defendant corporation and its servant jointly to recover damages for an assault and battery suffered by him while he was a passenger, at the hands of the servant. In each count of the complaint it is alleged that the defendant Malone, while acting within the scope of his employment by the defendant corporation, did assault and beat the plaintiff. It is entirely clear that these counts state an action of trespass vi et armis against the defendant Malone. Equally clear is it that each of them proceeds on the principle of respondeat superior in imputing liability to the defendant corporation; nothing being alleged from which it might be inferred that the master committed, authorized aided, abetted, or subsequently ratified the wrongful act. It is settled that the master's liability, under such circumstances, is consequential upon the servant's unauthorized act, and that the action against the master is in case. Southern B. T. & T. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930 opinion by Head, J.; City Delivery v. Henry, 139 Ala. 161, 34 So. 389. Prior to the statute trespass and case could not be joined in the same declaration. It being impossible to frame an action against master and servant in the same form for the intentional and unauthorized trespass of the servant, it may be there are insuperable obstacles in the way of joining counts against master and servant for a wrong of that description notwithstanding the statute. However that may be, distinct and independent causes of action in tort cannot be joined in the same counts. L. & N. R. R. Co. v. Cofer, 110 Ala. 491, 18 So. 110; H. A. & B. R. R. Co. v Dusenberry, 94 Ala. 413, 10 So. 274; A. G. S. R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509. Our recent case of Southern Ry. Co. v. Arnold, 50 So. 293, holds nothing to the contrary. There the action, though in tort against master and servant jointly, was in case against them both, and in consequence involved no misjoinder of actions. It follows that there was a...