49 Ala. 240 | Ala. | 1873
— The appellee sued the appellant in trespass for killing his horse and mule by driving its locomotive engine or car against them. The proof tended to show that the animals were killed by a passing train belonging to the defendant, on account of the carelessness, or negligence of the conductor, but no higher officers of the company were inculpated. The court refused to charge the jury that the defendant was not liable in this action unless the injury had been inflicted by the direction, or with the assent of the corporation.
All persons who direct or order the commission of a trespass, or assist upon the occasion, are, in general, liable as principals, though not benefited by the act. A party may be sued in this action, in respect of his previous or subsequent consent to the tortious act. But if he does not assist, either in word or deed, or does not consent, he is not liable, though it may have been done by a person assuming to act on his behalf. 1 Chit. Plead. 79, 80, 180, 181; Phil. Germ. & N. R. R. Co. v. Wilt, 4 Whart. 143. Whether or not the president, or some other high official, clothed with very ample powers, ought not to be considered as the corporation in matters of this sort, it is manifest that the conductor or engineer, or other subordinate agent, is not such a representative of the corporate body as should be so regarded. The charge ought to have been given.
The questions of evidence presented are such as arise in every case where the contents of writings are proposed to be proved by oral testimony, and the principal is sought to be bound by the declarations of his agent, and it is needless to discuss them here.
The judgment is reversed, and the cause remanded.
