52 So. 312 | Ala. | 1910
If it should be conceded that the demurrers to counts 1 and 2 were improperly sustained, it does not follow that the judgment must be reversed. Count 1 sought to charge defendant corporation,, for that one Adams, a servant in its employment, and while acting within the line and scope of his authority as such servant, did wantonly, willfully, or intentionally kill plaintiff’s intestate by shooting him to death. Count 2 charged that Adams recklessly and' wantonly shot plaintiff’s intestate to death. The case went to the jury upon other counts in every substantial respect the same, except that the act of Adams is averred .in them to have been wrongfully done, thus in part, perhaps, putting off a part of the burden of proof assumed in counts 1 and 2. Certainly under the other counts the burden of proof was no greater than it would have been under the first two. It may be assumed that the proof showed to the satisfaction of the jury that Adams wantonly, willfully, or intentionally and wrongfully killed plaintiff’s intestate by shooting him. There was certainly evi
The facts shown, stated with all favor to the appellant, were as follows: Defendant company was operating a coal mine. Adams was its general manager.. Appellant and her intestate lived in a tent near by. Adams went to the tent and arrested plaintiff’s intestate without a warrant and under circumstances indicative of malice. Why he did this, unless it was to-gratify some personal animosity, does not appear. It seems that the defendant kept a house for the confinement of prisoners. Adams placed intestate in that house, and there left him for some hours. Between 9 and 10 o’clock in the evening Adams took intestate from the house, carried him away into the woods, and there shot him to death. We find in these facts no warrant for the inference that the murder of plaintiff’s intestate was accomplished by Adams while in the execution of his agency. Nor is the controlling principle, or its application to the facts, affected by the consideration that Adams was a vice principal for the defend
We need not consider the assignment touching the exclusion of evidence. That evidence had no bearing or effect upon the point which has determined this appeal against the appellant.
Affirmed.