Jebeles-Colias Conf. Co. v. Booze

62 So. 12 | Ala. | 1913

SAYRE, J.

There was ample evidence to warrant the jury in finding that plaintiff (appellee) had been in the employment of the defendant corporation, and had discharged his duties under the personal direction and control of Colias; that on the occasion in question Colias had discharged plaintiff on account of some difference which had arisen between them about plaintiff’s manner of doing his work, and then, while plaintiff was in the act of leaving, bnt was still in defendant’s place of business, had committed an aggravated assault upon him. There was nothing in the testimony to indicate that the assault grew out of anything other than the difference indicated above and some temper evolved from the fact and manner of plaintiff’s dismissal from defendant’s service. The jury were authorized, therefore, to find that the assault was committed in the course.of Colias’ employment and in the line of his assigned duties, and that defendant corporation was liable for its consequences. — Gassenheimer v. Western of Alabama, 175 Ala. 319, 57 South. 718, 40 L. R. A. (N. S.) 998; Case v. Hulsebush, 122 Ala. 212, 26 South. 155. The cases just cited also suffice to show that the sufficiency of the second count of the complaint, upon which the case was tried, was correctly adjudged on demurrer.

It is hornbook law that when a party offers a witness in proof of his cause, he thereby, in general, represents him as worthy of belief, and cannot afterwards impeach his general character for truth or impugn his credibility by general evidence tending to show him to be unworthy of belief; but it is exceedingly clear that the party is not precluded from proving the truth of any particular fact, by other competent testimony, in direct contradiction of his witness, though the collateral effect may be to show that the witness was generally unworthy of belief. — 1 Greenl. Ev. §§ 442 443; Warren v. Gabriel, 51 Ala. 235. And under some conditions he may ask his witness whether he has not made other inconsistent statements. —Schieffelin v. Schieffelin, 127 Ala. 35, 28 South. 687.

Though charge C, refused to the defendant, be taken as a correct statement of the general law of the subject as far as it Avent, yet in view of particular developments of the evidence it needed qualification and amplification to save it from being a partial and misleading statement of that branch of the law of the case with which it undertook to deal. Plaintiff made no formal effort to impeach the general credit of his witness Nix. He did, however, offer evidence from which the jury might, and it seems did, infer that the testimony of the witness was evasive or even positively and consciously untrue. For the court to say to the jury in these circumstances that plaintiff had “vouched for the truthfulness of .the witness,” without a statement of the mere general character of that avouchment, and that it did not conclude plaintiff on the particular facts as to which the witness testified, would, in our opinion have left a false, or at least an incomplete and misleading, impression upon their minds, and was therefore refused without error.

The cases heretofore cited are enough to show that charge A, given at plaintiff’s request, was properly given. In Morris Hotel Co. v. Henley, 145 Ala. 678, 40 South. 52, it was held that the same charge, mutatis mutandis, in a similar case, was given without error.

Strictly construed, and to save error, we must so construe charges refused in the court below, charge 2 was refused to defendant without error. In fact, the charge seems to need some construction to avoid misleading, and that Avas enough to justify its refusal. There was no plea of justification. The defense was rested upon the proposition that defendant’s agent or servant, named in the complaint, had not committed the assault, but that another person, Avho also appeared to have been a servant of defendant, though it did not appear that he had any duties to perform in defendant’s place of business— he drove a wagon on the outside — had assaulted plaintiff. So that, if the assault Avas committed “as alleged in the complaint,” plaintiff was entitled to recover without more. It Avas necessary, of course, that plaintiff should satisfy the jury reasonably that the named agent was in fact the agent of defendant, but about that fact there was no dispute or conflict in the evidence. Defendant denied that its agent named in the complaint was at the time an officer of the defendant corporation; but he may have been an agent or servant without being an officer, and defendant’s testimony as well as that offered by plaintiff, went without contradiction to show that he was an agent at the time in charge of that part of defendant’s premises where plaintiff’s duties were performed, and in personal command of plaintiff while he remained in the service. There was no error in the refusal of the charge.

It has been settled by this court that the points made in appellant’s supplemental brief, filed some time after the submission of the cause for decision, such points not having been referred to in the original brief upon which the submission was had, came too late and cannot be considered. The additional brief which an appellant may file under the rule must support assignments of error, urged in the brief required to be filed as a prerequisite to the submission of the cause. — L. & N. v. Holland, 173 Ala. 675, 55 South. 1001. We are much inclined to think, from some examination of them, that there is no merit in these belated points, but withhold more definite statement for the reason above indicated.

We find no error in the record, and the judgment will be affirmed.

Affirmed.

All the Justices coucur, except Dowdell, G. J., not sitting.