W.E. Belcher Lumber Co. v. York, 7 Div. 777.

• Court: Supreme Court of Alabama
• Writing for the Court: FOSTER, Justice.
• Citation: 245 Ala. 286,17 So.2d 281
• Parties: W.E. BELCHER LUMBER CO. v. YORK.
• Decision Date: 24 February 1944
• Docket Number: 7 Div. 777.

17 So.2d 281

245 Ala. 286

W.E. BELCHER LUMBER CO.
v.
YORK.

7 Div. 777.

Supreme Court of Alabama

February 24, 1944

Appeal from Circuit Court, DeKalb County; W.J. Haralson, Judge.

[245 Ala. 287] McQueen & McQueen, of Tuscaloosa, for appellant.

L.L. Crawford and C.A. Wolfes, both of Fort Payne, for appellee.

FOSTER, Justice.

This is a suit in two counts; both are in trespass to land. The first count charges trespass by the defendants. The second count charges it by W.E. Belcher Lumber [17 So.2d 282] Company, Inc., by and through its agents, servants or employees acting in the line and scope of their employment and also by the individual defendants, W.E. Belcher, W.R. Waid and C.C. Headley. There was a judgment by default against Waid, and a jury and verdict against the lumber company and C.C. Headley, and a verdict assessing the same amount of damages against Waid.

There was a motion for a new trial duly acted on and proper judgment in the record as to same: the bill of exceptions was presented and acted on in due time and no motion has been made to strike it, section 827, Title 7, Code of 1940, though appellee insists in brief that it should be disregarded because there is no sufficient judgment on the motion. But there is such a judgment, and if there were not we would not strike the bill of exceptions without a motion.

Appellee's insistence that the notice of appeal was not given as required by section 804, Title 7, Code of 1940, is refuted by the record. Such notice was given. So that there is nothing in the way of treating the question insisted on by appellant: that it was due the affirmative charge because each count is in trespass and such a count cannot be supported by proof of an unauthorized act of an agent, but for which the corporation is liable on the principle of respondeat superior. The rule said to apply is that in such a suit proof of actual participation on the part of defendant in the damnifying act is essential, or a ratification of it, and it is not enough to show that defendant's agent while acting in the line and scope of his employment committed an unauthorized trespass.

An employer is generally liable for injuries intentionally inflicted by an employee in performing the duties of his employment intrusted to him, though the employer did not authorize or ratify such conduct or had prohibited it. Postal Tel. Co. v. Brantley, 107 Ala. 683(7), 18 So. 321; Miller Brent Lumber Co. v. Stewart, 166 Ala. 657(7), 51 So. 943, 21 Ann.Cas. 1149; 35 Amer.Jur. 993, section 559.

This liability does not exist where the agent steps aside from the purpose of the agency and does a wilfull injury. Goodloe v. M. & C.R.R. Co., 107 Ala. 233, 18 So. 166, 29 L.R.A. 729, 54 Am.St.Rep. 67; Seaboard Air Line R.R. Co. v. Glenn, 213 Ala. 284, 104 So. 548.

[245 Ala. 288] But when the force was not directly applied by the employer, nor authorized or ratified by him, an action in trespass will not be available against him, and since his liability is then only indirect, though existent, the form of action is trespass on the case. This has been...