Wise v. Curl

• Citation: 58 So. 286,177 Ala. 324
• Parties: WISE v. CURL ET AL.
• Decision Date: 04 April 1912
• Court: Supreme Court of Alabama

58 So. 286

177 Ala. 324

WISE v. CURL ET AL.

Supreme Court of Alabama

April 4, 1912

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by Mary M. Wise, administratrix, against J. N. Curl and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Bush &amp Bush, of Birmingham, for appellant.

Hinds Peevey and Percy, Benners & Burr, for appellees.

SAYRE J.

Plaintiff in error sued the defendants for wrongfully shooting and killing her intestate. The allegation of the second count was that "the death of her intestate was caused by the wrongful act of the defendants, their agents or employés." One is not responsible for the wrongful acts of his agents or employés unless done within the line or scope of their assigned duties. The count failed to aver a case of defendants' responsibility for the act of their agents or servants, and the demurrer was properly sustained.

After the plaintiff had rested her case, the court on motion excluded the testimony as to the defendants the Tennessee Coal, Iron & Railroad Company and Strickland. This was bad practice, since the testimony introduced by plaintiff was not illegal, nor was it either irrelevant or immaterial to the case stated in the complaint. It was, however, not sufficient to take the case to the jury, because it wholly failed to show that either of the named defendants was present at the difficulty in which plaintiff's intestate lost his life or was in any way connected with that event, or responsible for its consequences. In such cases the practice here shown has been allowed to pass muster in this court on a number of occasions on the theory that it was error without injury. And so it is here. As to these parties the court later on properly gave the general charge for them with hypothesis. The same course was taken as to defendant Hilton.

The case proceeding as against the defendants Higdon, Curl, and Cowan, it appeared without dispute that Higdon was not present, but that the two last named were, and that they acting as lawfully appointed deputies of Higdon, who was sheriff of the county, in the effort to execute a writ of possession in favor of the Tennessee Company against plaintiff's intestate and others, had become involved in a difficulty in which they had shot and killed plaintiff's intestate. They justified on the ground of self-defense, and, among other things, offered in evidence the writ under which they were...