Tennessee Coal, Iron & Railroad Co. v. Rutledge

• Decision Date: 11 May 1916
• Docket Number: 6 Div. 163
• Citation: 196 Ala. 59,71 So. 990
• Court: Alabama Supreme Court
• Parties: TENNESSEE COAL, IRON & RAILROAD CO. v. RUTLEDGE.

71 So. 990

196 Ala. 59

TENNESSEE COAL, IRON & RAILROAD CO. v. RUTLEDGE.

6 Div. 163

Supreme Court of Alabama

May 11, 1916

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Jesse Rutledge against the Tennessee Coal, Iron & Railroad Company. There was verdict for defendant, and from a ruling granting plaintiff's motion for new trial, defendant appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

McCLELLAN J.

The appellee instituted this action against the appellant to recover damages for assault and battery alleged to have been committed upon the plaintiff by the defendant's "agent or servant, acting within the line and scope of his authority as such." Upon the conclusion of the evidence the court gave the general affirmative charge for the defendant. The plaintiff's motion for a new trial was granted, and from this ruling the appeal is prosecuted.

The legal accountability of the defendant for the wrongful acts of one in its employ or service depends, of course, upon whether the servant committing the wrong was, at the time acting within the line and scope of his authority. Case v. Hulsebush, 122 Ala. 212, 217, 26 So. 155; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A.(N.S.) 653; Id., 169 Ala. 50, 53 So. 794. Higgins, who committed the alleged assault, was in the employ of the defendant as a foreman. The witness Johnson testified to declarations by Higgins, made immediately preceding the alleged assault, which went to show that Higgins had authority, "orders," to remove the plaintiff from the premises. There does not appear to have been any questioning of the admissibility of the declarations attributed by the witness to Higgins. Doubtless, that testimony was admissible, in connection with other facts and circumstances shown by the evidence, as tending to disclose the authority committed to the foreman (Higgins) in the premises. Pullman Co. v. Meyer, 70 So. 763-765, and decisions therein cited.

It is urged for appellant that, since the action does not seek to avail of the provisions of our Employers' Liability Act (Code, § 3910), the plaintiff should be and is concluded by the application of the common-law doctrine of assumption by one servant of risks, incident to the common employment, of injury consequent upon the negligence of a fellow servant. Laughran v. Brewer, 113 Ala. 509, 517, 21 So. 415....