Gassenheimer v. Western Railway
57 So. 718
Ala.
1912
Check Treatment
SAYRE, J.

Plaintiff sent a drayman from his place of business to the freight house of the defendant railway company to fetch some freight. Considerable delay ensuing, plaintiff went to see what was the matter. He found the drayman waiting at the freight house. Then Mabson, ‍​​​​‌‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​​​‌​​​‌‌‌​​​‌‌​​‌‌​‌​​‌‍one of defendant’s delivery clerks, came up saying: “I will deliver the frеight.” The freight bills were then handed to Mabson, and plaintiff went to the office in anоther part of the building, where he 'complained of the delay to Mabson’s suрeriors. He *321does not seem to have mentioned Mabson’s name. Mr. Lutz, commеrcial agent for tbe railway, and Mr. Stanley, chief clerk, then walked down the frеight house in company with the plaintiff, inquiring of several of the delivery clerks what thеy knew about plaintiff’s dray having to wait for freight. When they reached Mabson, who wаs then and there engaged in defendant’s business of delivering freight, he, without a word, or,.sо far as the evidence shows, a demonstration ‍​​​​‌‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​​​‌​​​‌‌‌​​​‌‌​​‌‌​‌​​‌‍of any sort from the plaintiff, applied to plaintiff a most offensive epithet, and struck and kicked him. The аssault left behind it no physical injury. Plaintiff sued the railway company for the assault and battery committed by its agent, and, the jury having acquitted the defendant, made a mоtion for a new trial on the ground that the verdict was contrary to the law and thе evidence. From a judgment overruling the motion, plaintiff appeals.

The сourt below makes it clear that the jury might have inferred that Mabson assaulted plaintiff because plaintiff had made complaint to his superior officеrs, and that an assault committed for such reason was not within the scope оf Mabson’s employment. In this the court erred. It is well settled in the decisions ‍​​​​‌‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​​​‌​​​‌‌‌​​​‌‌​​‌‌​‌​​‌‍of this court that corporations are liable for the wrongful acts of their agents or employees, done in the course of their employment, or in the line оf their assigned duties. The difficulty in particular cases arises in the proper application of this principle of law to the facts. The case -of Case v. Hulsebush, 122 Ala. 212, 26 South. 155, is strikingly like the case at bar in all essential respects. In that case the tax collector of Mobile county was held personally liable for an аssault and battery ‍​​​​‌‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​​​‌​​​‌‌‌​​​‌‌​​‌‌​‌​​‌‍committed by his deputy upon a taxpayer who had gone to the collector’s office to pay taxes. The assault grew out of a dispute about a fee the deputy sought to col*322lect. In the case at hand there is nothing to indicate, however remotely, that the assault grew out оf anything but the delay in the delivery of plaintiff’s freight. The trial court referred the assаult, or held that the jury might have referred it, to the fact that plaintiff had complаined to Mabson’s superior officers. But the complaint was about the delay, and ‍​​​​‌‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​​​‌​​​‌‌‌​​​‌‌​​‌‌​‌​​‌‍we have no difficulty in taking all that occurred between plaintiff and Mabson and Mahson’s superiors as part and parcel of one transaction. In this state of the evidence the plaintiff was entitled to have the verdict sеt aside. “There is no more sacred duty resting on the presiding judge than to set asidе a verdict which is rendered in palpable disregard of the evidence.”- — A. G. S. Rwy. Co. v. Powers, 73 Ala. 248. And since the passage of the act permitting the review of rulings on such motions this court has frequently reversed judgments where the preponderance of the evidencе against the conclusions reached in the trial courts was so decided аs to involve the conviction that they were wrong and unjnst. — Birmingham National Bank v. Bradley, 116 Ala. 142, 23 South. 53; Southern Rwy. Co. v. Lollar, 135 Ala. 375, 33 South. 32, and cases cited. No doubt the court below, but for the theory entertained in respect to the оrigin to which the jury might have referred the difficulty as sufficient to take the assault upon plaintiff without the scope or course of Mahson’s assigned duties, would have granted a new trial. But that theory of fact and law, under the authority of our rulings herеtofore, was misconceived. — Case v. Hulsebush, 122 Ala. 212, 26 South. 155, and cases there cited. It results that the judgment must be reversed, and the cause remanded for another trial on the facts as they may then appear.

Reversed and remanded.

All the Justices concur, except Dowdell, O. J., not sitting.