65 So. 667 | Ala. Ct. App. | 1914
This was an action by the appellee to recover damages for an alleged unlawful imprisonment and detention of himself, which in the several counts upon which the case went to the jury were alleged to have been caused by an agent, servant, or employee of the defendant while acting within the line and scope of his employment, one count alleging that the name of such agent or employee was to the plaintiff unknown, another count averring that his name was Thomas B. Smith, and still another averring that his name was L. C. Miller. There was evidence tending to prove the following state of facts: During the afternoon or evening of a day when the last Republican National Convention was in session, and when the news of its nomination of a candidate for President whs expected, the plaintiff, who was a newsboy about 10 years old, engaged in selling papers on the streets of Birmingham, went to the place of business of the defendant to get papers to sell. He paid for some papers, received a ticket or slip showing the number of papers to which he would be entitled when they were ready for delivery, and went into a part of a large room, which was the quarters of the circulation department of the defendant’s paper, separated from the remainder of the room by a wire netting, this compartment being the place assigned for the occupancy of the newsboys while waiting for an issue of the paper. Quite a crowd of newsboys— stated by different witnesses, respectively, to be 100, 75, and 50 — assembled there on this occasion, all on the same mission. Several hours elapsed before the issue of
It is contended in behalf of the appellant (defendant below) that the general affirmative charges requested in its behalf should have been given because of the absence of any evidence tending to prove that the restraint of the plaintiff was caused by either of the persons who in different counts were charged with the-commission of the wrong, and because, even if the evidence be regarded as having a tendency to prove that the wrong was committed by an agent or employee of' the defendant, of its lack of any tendency to prove that, such agent or employee in doing so was acting within the line or scope of his employment by the defendant. The evidence introduced by the plaintiff consisted of' the testimony of himself and other witnesses and the-answers made for the defendant by L. C. Miller, its circulation manager, to interrogatories propounded by the-plaintiff. No evidence was offered by the defendant. It
“I saw them filling the cones with ice cream in the next room, and then they handed them to us through the door. They unlocked the door .to give them to us. They had to unlock the door. They unlocked the door and handed them to us, and they had hold of the door at the time they done that.” “After I Avent doAvn in that room the doors Avere locked on me.” “I saAV somebody lock the door, but I do not know his name.”
It is to be observed that in none of these instances does the witness name the person who is referred to. But Ave are of opinion that there were circumstances disclosed by the testimony Avhich were such as, in connection with the direct evidence, furnished support for the inference that the Avrong complained of was committed as alleged in the several counts upon which the case went to the jury. .The incident occurred during business hours in the defendant’s establishment, at a time Avhen there was such a demand for news of the proceedings of a convention then in session as to call for issues of the paper in addition to the regular one, and in a place where what happened could be seen and heard by officers and employees of the defendant Avho were in charge of that part of its premises, and who were then engaged in preparations for the issue and circulation of an extra of exceptional interest. Agency and the scope of it, like other facts, may be proved by circumstantial, as well as by direct, evidence, or by the two kinds of evidence considered together. The evidential significance of such circumstances as the following
Nor was proof lacking that each of such representatives of the defendant who participated in the wrong-complained of was acting- within the “course of his employment” in the sense in which that and similar expressions are commonly used in statements of the doctrine of respondeat superior as a part of the law of prin
The overruling of the defendant’s objection to the question asked the plaintiff, “Did you ask any person to let you out of the room?” did not result in letting in
It was not error to permit the plaintiff to testify that he was kept or detained against his will. As was said in reference to a very similar ruling, which was reviewed in the case of C. N. Robinson & Co. v. Greene, 148 Ala. 434, 43 South. 797:
“It was a statement of a fact capable of proof by no one so well as by the plaintiff, and was not the expression of an opinion, reason, or conclusion of the witness as objected by defendant.”
In connection with the testimony of other witnesses as to the indications on the plaintiff’s person, and in the condition of his clothing of the rough usage to which he had then recently been subjected, it was permissible to prove that as soon as he was permitted to leave the place in which he had been confined he went immediately to the place near by at which such other witnesses saw him.
It was not improper to admit testimony as to the. marks on the plaintiff’s person of recent crying and undue excitement and of the torn and soiled condition of his clothing immediately after he was released from confinement, as there was evidence from which the jury could infer that the things so testified to were attributable to the experiences to which the plaintiff was subjected by an enforced confinement with a number of rough and turbulent newsboys, many of them older and larger than himself.
If error was committed in admitting testimony as to the visit of a policeman to the scene of the alleged detention, and as to what he did, this error was cured by the giving of written charge 26, requested by the defendant, by which that evidence was excluded from the consideration of the jury. — De Yampert v. State, 139 Ala. 53, 36 South. 772.
The statement of the witness Sol Dank, to the effect that there was no way for the boys to get out of the room, was one of fact pertinent to issues in the case, and its admission in evidence was not error.
The court properly refused the written charge requested by the defendant, to the effect that the plaintiff could not recover punitive damages. Such damage may be awarded for an unlawful detention of one’s person committed with actual malice or its legal equivalent. The malice required as an element for the recovery of such damages exists if there is a wanton disregard of the rights of the injured party. — Gambill v. Cargo, 151 Ala. 421, 43 South. 866; 19 Cyc. 371 Gambill v. Schmuck, 131 Ala. 321, 31 South. 604; 12 Am. & Eng. Ency. of Law (2d Ed.) 781. There was evidence tending to show that the restraint of the plaintiff was without any pretense of legal excuse and of a kind to justify an award of punitive damages. The appellant cannot
The charge referred to in the Thirty-Sixth assignment of error is faulty in making it a prerequisite to the existence of a right to assess punitive damages that the jury be reasonably satisfied from the evidence “that the conduct of the defendant was consciously wrong or in reckless indifference to the rights of the plaintiff.” To say the least, a charge so expressed was liable to mislead, as it was capable of conveying the impression that •it Avas necessary, in order for the defendant to be subject to liability for punitive damages, to prove its corporate participation in the wrong complained of, though the commission of it by an agent or employee was proved as alleged in the complaint. The court is not chargeable with error for refusing to give that instruction.
We discover no error in the record which calls for a reversal of the judgment.
Affirmed.