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

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

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.

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 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.

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 recognized since City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Louisville & N.R.R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Ex parte Louisville & N.R.R. Co., 203 Ala. 328, 83 So. 52; Dawsey v. Newton, 244 Ala. 661, 15 So.2d 271, citing many other cases. It was held in them that a count, such as No. 2 here involved, is in form trespass. This same theory obtains respecting trespass to property. Alabama Midland Ry. Co. v. Martin, 100 Ala. 511, 14 So. 401; Pruitt v. Ellington, 59 Ala. 454; Drake v. Lady Ensley Coal & I. Rwy. Co., 102 Ala. 501, 14 So. 749, 24 L.R.A. 64, 48 Am.St.Rep. 77; 25 Amer.Jur. 1005, section 572.

It is not claimed that the evidence supports a theory that this appellant corporation authorized a trespass on plaintiff's land. Appellant made a verbal agreement with Waid to mine iron ore on its land adjoining that of plaintiff, and with Headley to dig coal on different land of appellant. The evidence tends to show that Waid and Headley without appellant's authority went on plaintiff's land and mined some ore and did some damage to the surface. Plaintiff owned the surface and Woodstock Land and Mineral Company owned the mineral rights. The Woodstock Company and plaintiff each separately sued, but the suits were tried on different evidence. The Woodstock case was for trover for converting the iron ore and trespass upon the mineral interests in it. This Court held that there was sufficient evidence to go to the jury on both counts. W.E. Belcher Lumber Co. v. Woodstock Land & Mineral Co., Ala.Sup., 15 So.2d 625. Here there is no count in trover and no claim for conversion is made. It was held in the Woodstock case, supra that the evidence warranted a finding that appellant after knowledge of the acts of Waid ratified the...