Cleaney v. Parker

51 So. 9851 | Ala. | 1910

MAYFIELD, J.

The appellant, a woman, was a passenger on board the train of the Central of Georgia Railway Company. The appellees were conducting what is commonly known as a “news butch business” on said train. Appellant bought some lemons from the “butch,’ appellees’ agent, in charge of their business on said train, and, as she claims, paid the price of 10 cents therefor. Appellant claims that she was not certain that she had paid the “butch” for the lemons, and again asked him the price that he replied 10 cents; that the “butch” again demanded of her the price, which she declined to pay, saying she had paid him once; that he denied this, and insisted upon her paying the dime, which she refused to do; that the “butch” then attempted to take the lemons from her; that she thereupon threw up her hands to ward him off, telling him she would pay him the dime rather than have him take the lemons from her that she then paid him. the dime, and he, putting it in his pocket, replied that he was in a dime and that this was his profit. The appellant sued to recover the damages and losses suffered' to her estate and feelings.

The loss to. her estate was one dime, which, under all the evidence, if true, she was entitled to recover. Whether she was entitled to recover as for an assault, insult, or injury to her pride or feelings was clearly a question for the jury, and they seem to have decided it against her.

If there was any error in sustaining demurrers to the original complaint, it was clearly without injury, because the same evidence, which is practically without dispute, would have supported a verdict under either count as amended, if it would have supported one under either count of the original complaint. The complaint as amended, and as to which demurrers were overruled, was not practically or materially different from the original as to which the demurrers were sustained.

The trial court erred in allowing defendants to prove, over plaintiff’s objection, their rule with news agents, where a complaint is made by a conductor. The plaintiff was not shown to have any knowledge, actual or constructive, of such rule, nor was it binding upon her, and it could not tend to exculpate the defendants from the wrong of the agent. Such a rule as was shown, of discharging agents upon the complaint of conductors, could not exempt the defendants from liability for the acts of agents before they were so discharged.

We also think the trial court erred in those parts of its oral charge to which exceptions were reserved, in so far as the court instructed the jury that the agent of defendants was not acting within the line and scope of his authority in collecting the second dime from plaintiff. While, in collecting the second dime, he may have exceeded — probably did exceed — his authority and violated instructions from his principals, yet it was clearly within the line and scope of his authority in such manner as to render the defendants liable to plaintiff for such tort of the agent; while it was the tort of the agent, as between him and his principals, it was the tort of both, as between them and the plaintiff.

While it is true and.correct, as stated by the court in its instructions to the jury, that the damage to plaintiff’s estate was only one dime, yet it was a question for the jury, under all the evidence, as to whether she was entitled to any other actual damages.

The effect of the court’s instructions was that plaintiff could only recover back the dime which she was wrongfully required to pay by the defendants’ agent. This was probably an invasion of the province of the jury.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.