Wells v. Henderson Land & Lumber Co.

• Decision Date: 17 May 1917
• Docket Number: 6 Div. 497
• Citation: 200 Ala. 262,76 So. 28
• Parties: WELLS v. HENDERSON LAND & LUMBER CO.
• Court: Alabama Supreme Court

76 So. 28

200 Ala. 262

WELLS v. HENDERSON LAND & LUMBER CO.

6 Div. 497

Supreme Court of Alabama

May 17, 1917

Rehearing Denied June 21, 1917

Appeal from Circuit Court, Tuscaloosa County; A.S. Vandegraaf Judge.

Action by Mrs. Bessie L. Wells, as administratrix, etc., against the Henderson Land & Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

H.A. &amp D.K. Jones and James Rice, all of Tuscaloosa, for appellant.

Foster Verner & Rice and Harwood, McKinley, McQueen & Aldridge, all of Tuscaloosa, for appellee.

McCLELLAN J.

This is an action for damages instituted by the appellant, for the wrongful killing of Thomas E. Wells, plaintiff's intestate. Wells was killed by A.G. Carter on July 4, 1916. Carter was at the time a general agent or manager in the employ of the appellee, defendant, in and over the work of constructing a railway for appellee in Tuscaloosa county. Wells was employed by the appellee, through Carter, to build or to aid in the building of, a part of the railway. Wells went to Carter's "camp" to adjust and to collect his compensation for work done by Wells on the appellee's railway. Wells and Carter entered upon the business, with power to transact which Carter was fully commissioned by appellee, in a friendly spirit; but during the interview between them a dispute arose over the question whether Wells had performed his contract. When Wells asserted his belief that he had properly performed his contract with defendant, Carter replied that Wells was a liar, whereupon Wells assaulted Carter and bore him to the ground. Bystanders interfered and separated the men; but, according to one of the only two eyewitnesses examined, Carter secured a "scantling" and renewed the fight, during which Wells took the "scantling" from Carter, and the men were again separated, whereupon Wells announced to Carter that he (Wells) had enough, to which Carter replied he was not through, and started towards his bedroom "35 or 40 yards" away from the place where the interview began and the fight started. Bystanders then told Wells that he had better leave, and Wells went off from the place where the fight occurred in a direction opposite to that Carter had taken, as will be now stated, remarking, according to one of the two witnesses, for them not to let Carter come. Carter went directly to his bedroom, the entrance to which faced in a direction away from the place where the fight occurred. Carter came promptly out of his bedroom and back towards the place where the fight occurred with a pistol in his hand. When about 6 or 8 feet from his sleeping place Carter's brother stopped him and undertook to calm and dissuade him, a remonstrance that had no apparent effect upon Carter's purpose. Other men stopped Carter a few steps further on towards the place where the fight occurred, but their efforts to dissuade Carter were likewise unavailing. In the meantime, Wells had gone on up the road, being about 75 yards away when the bystanders stopped Carter the second time. Carter followed Wells, weapon in hand. When Carter reached a point about 60 or 65 yards from the place of the fight he shot one time, and in about a half minute he shot a second time. At the time the second shot was fired Wells was "something like 125 yards" from the point where the fight took place. Carter returned to his "camp." Later Wells' lifeless body was found. He was shot through the heart from the back. The trial court gave the general affirmative charge for the defendant, on the theory, as we understand it, that Carter's act in killing Wells was not an act for which the defendant, as Carter's employer, was responsible, it being a personal act of Carter's outside of the scope and line of Carter's duties or employment.

The law governing, applicable to cases of the class to which this one belongs, is thoroughly settled in this jurisdiction. In Gilliam v. S. & N.A.R. Co., 70 Ala. 270, "If the agent, while acting within the range of the authority of his employment, do an act injurious to another, either through negligence, wantonness, or intention, then, for such abuse of the authority conferred upon him, or implied in his employment, the master or employer is responsible in damages to the person thus injured. But, if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master or employer is not."

This doctrine of the Gilliam Case has been repeatedly followed and applied. In elucidation of the vitally important phrase, "while acting within the range of the authority of his employment," this court said in Goodloe v. M. & C.R.R. Co., 107 Ala. 233, 240, 18 So. 166, 167, 29 L.R.A. 729, 54 Am.St.Rep. 67:

"It is said, on the point under consideration, that the rule of the responsibility of the master for the acts of his servant 'does not apply simply from the circumstance that at the time when the injury is inflicted the person inflicting it was in the employment of another; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it. That is, it must be an act which is fairly incident to the employment; in other words, an act which the master has set in motion.' *** 'And generally, where the injury results from the execution of the employment, the master is liable.' "

In Palos Coal Co. v. Benson, 145 Ala. 664, 39 So. 727, it was also soundly, here pertinently, pronounced:

"The act must be, not only 'within the scope of his employment, but also' committed in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer"--citing apt authorities made by this court.

This announcement of doctrine was again approved in Republic...