U.S. Steel Co. v. Butler

• Citation: 69 So.2d 685,260 Ala. 190
• Decision Date: 29 October 1953
• Docket Number: 6 Div. 461
• Parties: UNITED STATES STEEL CO. v. BUTLER.
• Court: Alabama Supreme Court

Page 685

69 So.2d 685

260 Ala. 190

UNITED STATES STEEL CO. v. BUTLER.

6 Div. 461.

Supreme Court of Alabama.

Oct. 29, 1953.

Rehearing Denied Jan. 14, 1954.

Burr, McKamy, Moore & Tate and Jas. R. Forman Jr., Birmingham, for appellant.

Bryan Chancey, Birmingham, for appellee.

SIMPSON, Justice.

This is an action of trespass on the case by appellee suing as personal representative of Captain Butler, deceased, under the homicide statute, against appellant for wrongfully causing the death of her intestate. The deceased was shot and killed by two employees of appellant.

Right to a reversal is rested on two propositions: First, that the defendant was entitled to a directed verdict or the affirmative charge; and second, the verdict was against the weight of the evidence. We entertain the view that neither position is well taken and that the challenged rulings of the trial court must be sustained.

Two primary questions are to be determined: (1) whether the acts complained of were within the line and scope of the employment of the defendant's agents or servants who killed the deceased; and (2) the issue of self-defense of these two employees. We will, therefore, first state the tendencies of the evidence. The incident occurred on the property of the defendant company in what is known as Edgewater Village. The defendant was engaged in coal mining operations at that place and in connection therewith maintained the village consisting of some five hundred dwelling houses, where its employees resided, and oher buildings such as a commissary, etc. The deceased, Butler, resided in this village, was fifty-three years of age, and had been an employee of defendant for about twenty-five years. The two employees who killed him were one J. A. Vanderford, whose official title was village deputy, and Paul B. Thomas, whose official title was mine deputy. Vanderford's duties were in connection with keeping the peace and order of the village and keeping the houses rented, and Thomas' duties were with respect to the operation of the mining department as distinguished from the houses and the village. On June 4, 1948, Butler was said to have 'flipped' a note over the hedge of one of the white residences, the contents of which are as follows:

'You are so charming with added intelligence that I believe you can be trusted and yet if you dont prefer dont be mad with me but I would like to see you. If I can answer this note and place it at the north corner of your Garage and I will get it in the morning if you can get out alone state time and place and give me time we will work out something that wont leak.

'A friend'

The residence was occupied by an employee, John Riddle, and his family and his fifteen-year-old daughter, Mitzi Riddle, being in the back room adjacent to the hedge and seeing whom she later that day identified as Butler throw the note over the hedge, went out and got it and took it to her mother. Her mother then contacted the village deputy, Vanderford, and reported the incident to him. Vanderford contacted C. R. Davis, superintendent of the plant protection department of the defendant company, who was the superior officer of Vanderford and Thomas, and reported the incident to him. It seems that Vanderford and Thomas also had commissions as special deputy sheriffs of Jefferson County in order to more efficiently carry out their duties as deputies of the appellant, but they received no compensation from the sheriff's office, their entire compensation being paid by the defendant. When the matter was reported to Mr. Davis he instructed Vanderford to go to the sheriff's office in Bessemer and have an investigation made of the incident. Vanderford did this and the next morning two deputies from the sheriff's office in Bessemer picked up Vanderford in their automobile and then got Thomas and these four officers concealed themselves in the Riddles' garage; meanwhile Miss Mitzi Riddle had placed a blank envelope under the corner of the garage, purportedly so as to appear as a response to the suggestion in the note, and a little later that day, according to the testimony of Vanderford and Thomas, Butler came by and picked up the note as he walked through the alley by the garage; Vanderford then moved out and told him he wanted to talk to him and according to Vanderford, Butler attempted to draw a gun from his shirt bosom, whereupon Vanderford drew his pistol and shot Butler twice and Thomas, immediately to the rear of Vanderford, stepped out at about the same time and fired two shots in the body of Butler also. The two regular deputies from the sheriff's office appear to have done nothing and did not testify in the case. These two company deputies testified that Butler did have a pistol and that it was by his side when he fell and that the corner took charge of it. One strange aspect of the case is that neither of the two regular deputy sheriffs who were at the garage with these two company deputies testified to corroborate the testimony of Vanderford and Thomas, nor did the coroner testify to corroborate the fact of Butler having had a pistol or the wounds on the deceased's body. The only testimony in the case as to the location of the wounds showed he was shot in the back.

Of course, to recover against the defendant upon the theory of respondeat superior, it was necessary for the plaintiff to establish the status of master and servant and that the act done was within the scope of the servant's employment. The relation of master and servant is conceded. The grave question to be determined is whether Vanderford and Thomas, one or both, were acting within the line and scope of their employment when they killed the deceased. The rule has many times been stated in our cases in varying language. Boiled down it is: To authorize the submission of the question to the jury, the evidence must have a tendency either directly or by reasonable inference to show that the wrong was committed by the agent while he was executing his agency, that is, undertaking to execute the duties assigned to him and not from a motive or purpose of his own having no relation to the business of the master. If the evidence tends to establish that the act was an incident to carrying out the duties assigned to him by his master, the master may be held liable though he did not authorize the agent to resort to such means in rendering the services for which he was employed and also though the agent may have sought to accomplish the master's business by improper or unlawful means or in a way unknown to his master or even contrary to his express directions. The legal aspect of such a case is not changed because the agent superadds malice or other improper motive to his otherwise wrongful act. The following authorities, among many others which could be cited, sustain the proposition: Hardeman v. Williams, 169 Ala. 50, 53 So. 794; Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516; Shope v. Alabama Fuel & Iron Co., 195 Ala. 312, 70 So. 279.

As stated, Vanderford was employed to maintain the peace and order of the village and Thomas apparently was assigned the same duties with respect to the mining property. We will particularize the evidence with respect to Vanderford's duties, since it appears he took charge of the investigation. In his responsibility for maintaining the peace and order of the village, the testimony was that he acted as law enforcement officer therein; it was his duty to protect the property and the people in it and try to keep down trouble; he (as well as Thomas) had no regular hours of employment, but was subject to call at all times, day or night; and any time anyone should make a complaint 'about anything being wrong' the complaint was made to Vanderford and he 'answered these complaints as village deputy for the appellant.' In other words, he 'policed' the village. These two deputies were the only law enforcement officers maintained by the company at that place. This evidence was sufficient to make it a jury question as to whether or not at the time he killed deceased Vanderford was acting in furtherance of the duties assigned to him, and the same applies to Thomas. The mere fact that they were also special deputies under appointment of the sheriff of Jefferson County did not materially alter their status as the servants or agents of the defendant. This additional circumstance simply raised a question as to the capacity in which they acted. Vanderford undoubtedly was acting in the execution of his duties as village deputy, since from aught appearing from the evidence he was in charge of the party, laid the plans to entrap the deceased before he visited the sheriff's office in Bessemer, and then having entrapped him proceeded to carry out his mission to interrogate him and finally shot him down. We find nothing in the record to disclose what if anything the officers of the law of Jefferson County did in connection with the matter, or that this so-called 'investigation' was being carried out for the sheriff's office of Jefferson County. Clearly from this evidence the jury could reasonably infer that the incident grew out of the effort of Vanderford and his colleague, Thomas, to carry out the instructions of the defendant to protect the property and people of the village, keep down trouble and answer their complaints, and that their conduct on that occasion was an incident to carrying out those duties and was not from a personal motive or purpose having no relation to the master's business. The request for a directed verdict and the affirmative charge was therefore properly refused. The following cases bear some analogy and are sustentive: Shope v. Alabama Fuel & Iron Co., supra; Hardeman v. Williams, supra; Scipio v. Pioneer Mining & Mfg. Co., 166 Ala. 666, 52 So. 43; Case v. Hulsebush, ...