61 So. 601 | Ala. Ct. App. | 1913
Lead Opinion
The single count of the complaint in this case, after averring, in effect, that at the time of the commission of the alleged wrong complained of the plaintiff was a passenger on a train of the defendant, averred that “defendant’s servant or agent on said train used towards plaintiff abusive or insulting language, and as a proximate consequence thereof plaintiff was greatly humiliated,” etc. The court overruled the defendant’s demurrer to the complaint, which assigned, among other grounds, “that said complaint fails to allege or show that the servant mentioned in said complaint was acting within the line and scope of his authority.” We are unable to escape the conclusion that this ground of demurrer pointed out a material deficiency in the complaint.
The rule under which very general averments of a breach by the defendant of a duty owing by him to
• The mere fact of tbe existence of the relation of prin-cipaland agent is not enough, under the law, to impose upon the principal liability for whatever' tort the agent may commit while the relation exists. Under the doctrine of respondeat superior the liability of the principal for the torts of his agent does not extend to wrongs committed by the agent while he is acting wholly outside of the general range or scope of his employment, and is no longer in any way or sense engaged in performing the service for which he had been employed, or to which he had been assigned. — Henderson-Mizell Mercantile Co. v. Chapman & Co., 3 Ala. App. 296, 57 South. 82; 4 Elliott on Railroads, § 2638.
In the opinion rendered in the case of Louisville & Nashville R. Co. v. Johnson, 162 Ala. 665, 50 South. 300, it was distinctly recognized that when a principal is sought to be charged with liability for a tort committed by his agent it is incumbent upon the plaintiff to show by the averments of his complaint that the act or omission complained of occurred under such circumstances as to render the defendant, as the principal or employer, liable for it, though it was also recognized that “there are no patented words for charging the misconduct imputed to have been committed or omitted ‘within the scope of the servant’s employment,’ ” and that it is sufficient if the averments of the complaint, read as a whole, show that the agent, when committing the wrong, bore such a relation to the defendant as to render the latter liable for the misconduct complained of. The wrong complained of in the case at bar is similar to the one which was the subject of complaint in the case of Lampkin v. Louisville & Nashville R. Co., 106 Ala. 287, 17 South. 448. It was held that the com
The averments of the complaint do not shoAV that the plaintiff was subjected to the alleged abuse or insult in such circumstances as to render the defendant liable to him for the Avrong, though it was committed by one to whom the defendant had intrusted no duty in reference to the operation of the train or the protection of the passengers thereon. The duty of protection Avhich a carrier owes to his passenger is not to be so enlarged as to make him liable for an injury inflicted by one to
Exceptions were reserved to rulings of the court in admitting evidence as to the manner and tone of voice accompanying .the expressions of the defendant’s employee which were complained of as abusive or insulting, and to the giving and refusal of instructions as to the right of-the jury to look to such evidence. Without undertaking to rule upon questions that may not be presented at all or in the same way on another trial that may be had under different issues, it may be said that to deny the jury the opportunity of considering the words deposed to in the light of the way in which they were spoken would. seem to amount to a withdrawal from its view of an integral part of the occurrence which is the subject of complaint. Whether or not words spoken by one person to another are to be regarded as abusive or insulting, or otherwise, may depend largely upon the manner or tone of voice of the speaker. A statement which could properly be treated as inoffensive if it was made in a jocular or friendly way might be distinctly abusive or insulting if the manner of the speaker -was serious, and his tone of voice indicated anger or ill will. — Barlow, et al. v. Hamilton, 151 Ala. 634, 44 South. 657; Hill v. State, 146 Ala. 51, 41 South. 621; Riley v. State, 132 Ala. 13, 31 South. 731; 1 Elliott on Evidence, §§ 540, 552.
Reversed and remanded.
Rehearing
In the brief filed in support of the appellee’s application for a rehearing, it is contended that what was saidx in the foregoing opinion is opposed to the decision rendered in the case of Birmingham Railway & Electric Co. v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. The assault for which the common carrier was held liable in that case was one committed upon its passenger by its conductor, who was in charge of the car upon which the passenger was riding. It was distinctly recognized in that case, as one of the elements of the plaintiff’s right to recover, that at the time the assault complained of was committed the conductor was engaged in the service for which he had been employed by the carrier, and that the assault was a disregard and violation of a duty imposed upon him by his employment. The following expressions, indicating the grounds upon which the defendant in that case was held liable for the assault, were quoted by the court in the course of the opinion rendered: “The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he intrusts the performance of this duty to his servants the law holds him responsible for the manner in which they execute the trust.” “It is a duty of the conductor, and other employees upon a train of cars to treat the passengers with civility, and to abstain from all unnecessary violence towards them.” The carrier was held liable for the assault committed by the conductor, because that assault was a breach of a duty of the carrier to the passenger, the performance of which was imposed upon the conductor by his employment. Nothing said in the opinion in that case supports the contention that a carrier is to be held to lia
Application for rehearing overruled.