Southern Ry. Co. v. Beaty

• Decision Date: 19 March 1925
• Docket Number: 8 Div. 634
• Citation: 103 So. 658,212 Ala. 608
• Parties: SOUTHERN RY. CO. v. BEATY.
• Court: Alabama Supreme Court

103 So. 658

212 Ala. 608

SOUTHERN RY. CO. v. BEATY.

8 Div. 634

Supreme Court of Alabama

March 19, 1925

Rehearing Denied April 16, 1925

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Action for unlawful detention by Maynard Beaty against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A.H Carmichael, of Tuscumbia, S.A. Lynne, of Decatur, and Stokely, Scrivner, Dominick & Smith and Andrew J. Thomas, all of Birmingham, for appellant.

W.W Callahan and A.J. Harris, both of Decatur, for appellee.

SOMERVILLE J.

The gist of the complaint--counts 4 and 5--is found in the allegation that--

"Defendant, by and through its agents or servants, to wit, one Parsons and one Wyrick, who were acting in the line of duty or scope of their authority as such agents imprisoned plaintiff without legal warrant."

This sufficiently charges the principal, this defendant, with legal responsibility for the unlawful detention. Jones v. Strickland, 201 Ala. 138, 77 So. 562; Buttrey v. Wilhite, 208 Ala. 573, 94 So. 585. Moreover, the issue was clearly defined on the trial by specific instructions given to the jury by the trial judge.

The record exhibits 171 assignments of error, most of which relate to rulings on the evidence. But the two decisive questions in the case are: (1) Was the alleged wrong committed by defendant's agents, Parsons and Wyrick, within the scope of their authority, express or implied, or was it done in the line of their duty in the service of the defendant; and (2) if the act complained of was not within the scope of their authority, and not done within the line of their duty was it nevertheless ratified by the defendant after it was done, or while in process of being done?

In aspects that are of material importance, the testimony is without dispute. The men who arrested and detained the plaintiff were in the regular service of the defendant railroad company. Wyrick was known as captain of police, and Parsons as sergeant of police; but it nowhere appears that they were regularly commissioned with the authority of regular policemen. They were expressly "charged with the duty of protecting the property of the Southern Railway Company, and all property in its possession, and with the duty of handling doubtful claims made against defendant." Impliedly, of course, they were authorized to do all lawful acts reasonably necessary and appropriate to the performance of their designated duties. La Fayette R.R. Co. v. Tucker, 124 Ala. 514, 27 So. 447; Robinson v. Greene, 148 Ala. 434, 43 So. 797; Gambill v. Fuqua, 148 Ala. 448, 42 So. 735; Mechem on Agency, § 311. As is sometimes said, where there is no express authority for an agent to do the act in question, the authority "may be implied from his relation to the principal, the nature of his employment, and the mode in which he is permitted to act or conduct the business." 25 Corp.Jur. 500, § 74; McKain v. B. & O.R.R. Co., 65 W.Va. 233, 64 S.E. 18, 23 L.R.A. (N.S.) 289, 131 Am.St.Rep. 964.

From the nature of the expressly designated duties of Parsons and Wyrick, and from the circumstances alone of the plaintiff's arrest and detention by Parsons, the conclusion would be clear enough that Parsons' act in arresting plaintiff was not within the scope of his authority, nor in the line or course of his employment. The duty to guard and protect property may very well imply the authority to arrest and detain any person who in the judgment of the agent is found unlawfully interfering with it. But--

"There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony, or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he sees fit to punish a person who, he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property; it is done merely for the purpose of vindicating justice." Allen v. London, etc., R. Co., L.R. 6, Q.B. 65, quoted with approval in McKain v. B. & O.R.R. Co., 65 W.Va. 233, 64 S.E. 18, 23 L.R.A. (N.S.) 289, 294.

This, we think, is a sound rule applicable to ordinary relations and conditions. See, also, Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653; Palos Coal Co. v. Benson, 145 Ala. 664, 39 So. 727; Wells v. Henderson, etc., Co., 200 Ala. 262, 76 So. 28, L.R.A.1918A, 115; Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516.

But Parsons was one of defendant's police officers--a part of an apparently extensive system designated as the "Police Department of the Southern Railway," headed by a general superintendent, with divisions headed by captains in control of policemen who are assigned to local duties. Evidently, Parsons promptly reported to his superior, Wyrick, his arrest of plaintiff; and the evidence shows that Wyrick in turn reported that arrest to his superior, Conley, the superintendent of the entire police department, as it was his duty to do. In its answer to plaintiff's statutory interrogatories, defendant stated that the officers to whom Wyrick reported the arrest took no action thereon. This, we think, is the equivalent of saying--at least it is a reasonable inference--that the matter of handling plaintiff's case was left in the hands of Wyrick, and is some evidence either of Wyrick's original authority to arrest and detain plaintiff under such circumstances, or of a ratification thereof by the responsible head of the police department, who was, quoad hoc, the alter ego of defendant.

Some confirmation of this view may be found in the fact that while Wyrick and Parsons were holding plaintiff in their custody at Huntsville, Wyrick was getting advice from some undisclosed authority, by long-distance 'phone as to the proper charge to make against him to the United States commissioner; and also in the fact, unexplained, that a written release of the defendant and those two officers--executed by plaintiff in consideration of the abandonment of proceedings against him, and originally delivered to Wyrick--was found, before the time of the trial, in the hands of defendant.

Appellant invokes the principle, sanctioned by some of the authorities, that where the agent "may act in either one of two capacities, as a policeman for the state, or as a servant for the master, the presumption would be that he acted in the former capacity." Houston v. Minneapolis, etc., Ry. Co., 25 N.D. 469, 141 N.W. 994, 46 L.R.A. (N.S.) 589, Ann.Cas.1915C, 529; Jardine v. Cornell, 50 N.J.Law, 485, 14 A. 590. But, as we have already stated, there is nothing to show that Parsons and Wyrick were public officers, and the presumption invoked, whatever it might be worth, is therefore not available.

The record exhibits 101 assignments of error based upon rulings on the evidence. The only argument advanced in support of these assignments--excepting 70, 75, 136, and 145--is that the acts and declarations of Parsons and Wyrick were not within the scope of their employment, a contention which we have held invalid. As to the other four assignments, the only contention is that the testimony admitted was but the conclusion of the witness. The record, however, fails to show that that objection was interposed as to any of the questions covered by those assignments. All of these assignments must therefore be overruled.

Charge numbered 1, given for plaintiff, is subjected to several criticisms which we think are hypercritical and without substantial merit: (1) It authorizes a recovery by plaintiff "for such wrongs which the evidence proves he suffered, and which are complained of in his complaint." This charge was not intended to cover the principle of proximate cause, which was clearly stated in other instructions; but it does in fact restrict recovery to wrongs complained of in the complaint, and those complained of are alleged to have been suffered by reason of the acts and conduct of defendant's agents. (2) A recovery for such wrongs as the evidence proves plaintiff suffered is certainly a stricter requirement than that the law imposes. (3) A proper grammatical construction of the charge does not support the contention that it assumes as a fact that plaintiff suffered humiliation and shame. The sequence of clauses, though awkward, was, at the worst, ambiguous only, and could have been made clear by an explanatory charge had defendant requested it.

It is complained of charge numbered 4, given for plaintiff, that it permits a recovery "if the defendant ratified the action of its agents," though they were not acting within the scope of their authority or employment. The suggestion is that there is an entire absence of evidence tending to show that the defendant, or any one authorized to bind the defendant, was informed of the circumstances leading to the arrest, or that they did anything whatsoever tending to ratify it.

This contention overlooks the principle declared in Hall, etc., Co. v. Haley, etc., Co., 174 Ala. 190, 202, 56 So. 726, 730 (L.R.A.1918B, 924), viz.:

"It is the duty of an agent to inform his principal of every material fact within his knowledge, no matter when acquired, bearing upon the subject-matter of his agency, which may affect the interests of his principal with respect thereto; and it will be presumed [prima facie] that he has discharged this duty."

When Wyrick reported to his chief, Conley, the fact of plaintiff's arrest as an item of railroad police business, it must be presumed that he reported also the material facts leading up to and accompanying the...