73 So. 436 | Ala. | 1916
(1) This action was brought against two defendants, one a natural person, the other a corporation. It is reasonable to assume that the pleader intended to charge defendants as joint tort-feasors, but, considering the peculiar nature of the wrong charged, the unusually meager and uncommunicative phraseology of the first count must be noted. As amended, this count, when it came to a statement of the gist of plaintiff’s action, alleged that “the defendants negligently threw a plate which struck the plaintiff.” A corporation may be liable for the damage done by a plate negligently thrown, but it cannot throw a plate unless the act be done by authority of a resolution of its governing board or by some alter ego or vice principal. Such a corporate act as that charged is not impossible, however, and, taking the count at its face value, it purports to charge that the defendant corporation and the natural defendant, acting in concert, threw the plate that damaged plaintiff. But no other association between the defendants is alleged. It is well enough, in suits against a corporation alone, after showing duty, to aver
(2) Nor was there any misjoinder in the third count which charged a trespass vi et armis, to-wit, “an assault and battery committed by the defendants.” Much the same considerations as those noted above apply to this count. We think the necessary construction of this count is that the defendants were jointly liable; Fisch because he did assault and beat plaintiff, the defendant corporation because Fisch was at the time acting as its alter ego or vice principal. Each count must be construed by itself, but it is not without interest in this connection, as showing the probable nature of the transaction, to note that in count 2, as amended, it was alleged that Fisch was president, manager, or director of the defendant corporation.
(3) But count 4 of the complaint cannot be sustained against the demurrer without forcibly breaking away from substantial considerations upon which this court has heretofore placed its rulings that the master and his mere servant, or principal and agent as the count states the case, cannot be joined in the same count, based upon the unauthorized trespass of the servant, committed in the performance of a lawful duty commanded by the master. This count claimed damages of the defendants for that,
The statute (Code, § 5329), enacted since the date of that decision, now provides that “all actions ex delicto may be joined in the same suit.” It is not to be presumed that the Legislature intended to extinguish the sound and just principle of the “further reason” mentioned by Judge Head; but its proper application to the case of a judgment upon a complaint which is so framed as to show conclusively — that, however, is not this case— that the master’s liability is rested upon his .suretyship, for the good behavior of his servant is not entirely satisfactory. The reason first stated is, however, in all cases, convincing, and will be unassailable so long as the system of pleading that has come •down to us remains without radical change. And, as bearing upon the authority of that case in the present situation, it may be noted that under the statute of that time (Code of 1896, § 3293) counts in trespass and trespass on the case relating to the
In keeping with the foregoing views, we have held, in cases where the point was directly raised, that trespass and case cannot be joined in the same count.—Southern Railway v. Hanby, 166 Ala. 641, 52 South. 334; Interstate Lumber Co. v. Duke, 183 Ala. 484, 62 South. 845; Southern Railway v. McIntyre, 152 Ala. 223, 44 South. 624, and the cases cited. The demurrer to count 4 should have been sustained. Count 2 was subject to the same ground of demurrer, but that count was substituted by an amended count, on which, it appears from the record, defendants took issue without objection.
(4) We are unable to construe the record as showing that issue was joined only upon the second count as amended. The only fair construction of the judgment entry is that the case was submitted to the jury on each of the four counts contained in the amended complaint, and this conclusion is borne out by other parts of the record. This appeal is taken upon the record proper, and we do not know what the evidence may have been; but charges moved for by the parties are now made a part of the record, without a bill of exceptions (rule 36, 175 Ala. xxii; Acts 1915, p. 815); and the charges here very clearly corroborate our construction of the judgment entry. Nor can the ver-
(5) Nor can the judgment be sustained on the ground that, while the assignment of errors is joint, the error shown affected only one of the defendants. The defendants were entitled to complain jointly or separately of the count in which they were improperly joined, and, besides, the general rule is that joint judgments are to be treated as entireties on appeal, and a reversal on the appeal of one defendant will require a reversal as to both.—North Ala. Traction Co. v. Hays, 184 Ala. 592, 64 South. 39. After due consideration, we have been unable to find any safe ground upon which to place a conclusion that the error appearing of record did not prejudicially affect both defendants.
Reversed and remanded.