109 Ala. 224 | Ala. | 1895
These two cases arise from substantially the same state of facts, and were submitted together in this court. Ajppellees, being owners of propperty abutting on a public street in the city of Birmingham, brought suit in trespass against appellant to recover damages for injury to their property resulting from the act of appellant’s agents or servants in cutting and trimming certain trees growing on the sidewalk in front of' appellees’ lots, which in one case had been planted by appellee some years ago, and in the other case it does not appear by whom they were planted. Appellant, a corporation invested with the right of eminent doxnain under the laws of this State, and authorized by law to erect poles and stretch wires thereon through the streets of Birmingham, was required by an ordinance of that city to remove certain of its poles and wires from the street on which appellees’ property is situated, and to place them on the sidewalk in front of such property. Appellant claims that, in order to comply with this ordinance, it became necessary to cut and remove many of the limbs of the trees which had entwined themselves about the wires, and also to cub other limbs in order that the trees should not interfere with the wires after the poles were removed to the sidewalk and the wires suspended over the tops of the trees ; that, on ascertaining this to be necessary, it so informed the-mayor of the city, who promised to obtain the consent of the property owners ; that afterwards, and without having obtained such consent, as appellees were informed at.the time, the mayor sent-an officer of the city fire department to superintend 'the trimming of the trees, and under his direction the work was done by appellant’s employes. Besides the appellant’s wires on the poles, there was also a fire-alarm telegraph wire, which was the px-opertyof the eity, and
The two controlling question are : First, Whether an action of trespass lies in favor of appellees, as owners of the lots abutting on the street where the trees are standing, agaihst-appellant for the acts of its employes in cutting the trees. Second, If such liability was incurred,-what is the measure of damages?
Appellant’s counsel have filed an interesting and elaborate argument in support of the proposition that a telephone service does not constitute an additional burden on the public streets of a city, and they cite numerous cases which are ably reasoned ; but, in our opinion, the decision of the cases presented by these appeals for our consideration does not turn on that question, and Vve therefore leave it undecided, Other principles to which we will presently advert must govern our conclusions.
The owner of property abutting on a public street, in a city, in the absence of statutory provisions to the contrary at the time of the dedication, or of a different intention appearing from the instrument or act of dedication, owns the fee in the land to the center of such street subject to the public easement.— Western Ry. Co. v. Alabama Grand Trunk Ry. Co., 96 Ala. 272; Evans v. Savannah & Western Ry. Co., 90 Ala. 54; Moore v. Johnston, 87 Ala. 220; Columbus & Western Railway Co. v. Witherow, 82 Ala. 190, 3 South. 23; Perry v. New Orleans, N. & C. R. Co., 55 Ala. 413; 5 Am. & Eng. Enc. Law, 405. And, in absence of proof to the contrary, the presumption of law is that the fee to the center of, the street is-in the owner of the abutting property. — Rice v. County
Appellees’ ownership of the trees, whether the latter were planted.by them on the sidewalk, or acquired by devolution of title to the adjacent property, was and is a qualified and limited ownership, subordinate to the public right to safe and convenient passage, and to the rights, powers, and duties of the governing municipal body in- the protection, promotion, and establishing of every public use in and upon the streets in a city. — Baker v. Town of Normal, 81 Ill. 108. In respect of all such matters, the private right of the owner of the abutting property to maintain the .trees must yield to the paramount public right whenever the necessity may arise, although, until such necessity does arise, the owner is clearly entitled to the enjoyment of all the benefits which may result to his property from such trees, and to protection from their distruction or mutilation by others. For instance,, if the roots of the trees should cause irregularities or breaks in the pavement upon the sidewalk or street, or if the shade and moisture from the trees should rot or injure a wooden pavement, or if the trees otherwise interfered with vehicles or foot passengers, it would, in our opinion, be clearly within the power and
It is not to be inferred, however, from anything that has been said, that either the city, acting under its police power, or any corporation invested with the right of eminent domain, acting under the city’s authority, is absolved from all liability to the owner in such cases ; for, if the city or other corporation invested with the right of eminent domain, acting under municipal authority, proceeds to cut or trim trees planted on a side
It is unnecessary to consider on these appeals the question as to the measure of damages, and we will not anticipate it. Reversed and rendered.
The foregoing opinion was delivered November 3, 1892. The appellees applied for a rehearing, which was granted, and the cases were again argued and submitted. Oh February 4, 1896, the following opinion was delivered :
The defendant lawfully put its servants to removing telephone wires in a street in the city. The service, necessarily and lawfully, required the cutting of some of the branches of certain shade trees in the street, in front of plaintiffs’ lots, growing upon those parts of the street of which plaintiff's were, respectively, seized in fee. The servants, to state the case most strongly for the plaintiffs, whilst performing the defendant’s service, went beyond their
We believe it to be an undeniable proposition that a person cannot be a tresspasser vi et armis who neither commits, authorizes, aids or abets, nor subsequently ratifies, the wrongful act. It is observable, under this rule, that if one expressly commands another to do the wrongful act, and the same is done in pursuance- of the command, he is, under familiar principles, guilty as a principal, and liable as such. Nor is it essential to liability in trespass that there be an express command to do .the wrongful act. Thus, if an agent or servant, in and about the business of the principal or master, commits a trespass upon the person or property of another, in the immediate presence of the principal or master, it will be presumed that it was done by the direction of the latter, who will be liable for the trespass, unless it is' affirmatively shown that he did not coerce or direct the act, but did what he lawfully should to prevent it. Foster v. Essex Bank, 17 Mass. 479, s. c., 9 Am. Dec. 168. So, also, if a principal or master direct his agent or servant to do an act which is, in itself, unlawful, and, in its commission, an injury is done to another ; or if the act commanded, if done without injury to another, is, in itself, not unlawful, yet is of such a nature that the natural and probable effect or result of its performance is injury to another, and, in its performance such injury is done, he who gave the command, in either case, is a trespasser. Thus, in Gregory v. Piper, 9 B. & C. 591, a master ordered his servant to lay down a quantity of rubbish near his neighbor’s wall, but so that it might not touch the same. The servant laid the rubbish, and exercised due care in doing so, yet such was the character of the act that some of the rubbish naturally ran against the wall. Held, that the master was liable in trespass. When the wrong done has benefitted another, or was done for that purpose and in his interest, such other, with full knowledge of the facts, may make himself a trespasser by ratification. Lord Coke stated this rule thus:, “He that agreeth to a trespass after it is done is no trespasser unless the trespass was done to his use
To the general rule of non-liability in trespass above announced and explained, we are aware of but one exception, which is that, on principles of public policy, a public officer is liable in that form of action for the trespasses of his deputy, committed colore officii whether, under the rules above stated, he would be liable as principal or not. 1 Chit. Pl. Marg. p. 82. In an early Massachusetts case, it was held that a sheriff, who was not present at the service of a writ, when his deputy committed a trespass, was not jointly liable with the deputy. Campbell v. Phelps, 1 Pick. 62. But the better rule seems to be that the officer is always constructively present, and jointly responsible for the torts of his deputy committed colore officii. See the cases collated in note to Kirkwood v. Miller, 73 Am. Dec. 134, 141;Cooley on Torts, pp. 132, 135; 1 Chitty Pl. Marg. p. 82.
Since the decision by Lord Kenyon, in the year 1800, in the leading case of McManus v. Crickett, 1 East, 106, until a comparatively recent period, the rule of non-liability of the master .for the willñil act of the servant, there laid down, was carried to the extent of securing immunity to the master from all liability to compensate the injury, in any form of action. As late as the case of Cox v. Keahy, 36 Ala. 340, decided in 1860, the late Chief Justice Stone, delivering the opinion of the court, vigorously maintained and applied the doctrine of McManus v. Crickett. It was an action on the case, for negligence of the defendant’s servants in operating a steamboat. There was some evidence tending to show that the injury was willfully committed by the servants whilst operating the boat. The trial court was requested to instruct the jury that the defendants were not liable if the collision was willfully caused by the acts of their agents or servants. The instruction was refused, and the ruling was held error, for which the judgment was reversed. After noticing some other cases, the court remarked : “None of them materially unsettle the great distinction ruled in McManus v. Crickett, supra, between those injuries which are the direct result of intentional or willful fault on the part of the servant, and
Judge Reeve, referring to McManus v. Crickett says : “The principle adopted in the case in East shows that, when a servant does au injury with violence, the very doing of it is an abandonment of his master’s service. It is said that there is a difficulty in framing a proper action to remedy the injury, if one exists ; for that the injury was immediate ; and, therefore, trespass vi et armis was the proper action, if any; and that this action proceeds upon the ground of criminality, which would subject the master to a fine. Certain it is, that the master is not liable criminal-iter. It does not follow, because the injury by the servant was an immediate injury, that the action against the master must be trespass. It proves, indeed', if the action had been brought against the servant, it must have been trespass. * * I take it that when an immediate injury, with force, is done by another, for whom the employer is liable, the action is trespass on the case ; and in perfect analogy in this case with that when a man keeps a dog accustomed to bite, and on that account is liable. It is an action of trespass on the case, although the injury is with force, and as immediate as if done by a man. I apprehend that the action on the case reported in 6 Term Rep., 125, nvas the proper action in which to try the liability of the master.” In that case, the servant had committed a trespass vi et armis in the course of his employment..
Wood, in his work on Master and Servant, after discussing the master’s liability, says : “Thus, it will be seen that the question as to whether the master is liable in trespass or case for an injury inflicted by a servant merely affects the remedy, and not the cause of action itself, and depends upon the question whether the act is a natural, necessary or probable incident of doing the act .directed. If so, the master is liable in trespass; if not, then he is not liable in trespass, but only in case.” Wood, Mas. & Serv’t, 596-7. Judge Thompson,' in his excellent discussion of all these questions, both under the old and the new doctrine, and after contending, in his vigorous style, for the correctness of the new, considers, in section 10 of his observations on McManus v. Crickett, the question of the proper form of action against thp master. He says: “With respect to the form of
The correctness of the view we take in this opinion may be tested by a consideration of the law is in respect of liability of master and servant to a joint action. It is a familiar rule that there are no ancessories in trespass. All. who are guilty at all are co-trespassers, and may be jointly sued. See note to Kirkwood v. Miller, 73 Am. Dec. 140, 141; Cooley on Torts, 133. Judge Thompson, in section, 11 of his work, supra, p. 891, shows clearly that, by the weight of authority, where the liability of the master arises from an unauthorized trespass of the servant, committed in the performance of a lawful duty commancled by the master, a joint action against master and.servant will not lie,.for the reason that the action against the master is case, while that against the . ser
It is only upon the principle which we here declare that the vast array of decisions in this and other courts can possibly be maintained, where the common law of pleading prevails, which hold that, in actions on the case for negligence of the defendant’s servants, the defense of contributory negligence is overcome by showing that the act of the servant, causing the injury, was willful or intentional. It is an admitted rule of pleading than an action on the case cannot be maintained if the defendant’s act was a trespass only. So that, if the unauthorized willful act of the servant constitutes the master a trespasser, and suable as such, a replication to the plea of contributory negligence to an action on the case for the negligence of the servant, setting up that the servant willfully committed the act, would, manifestly, be a complete departure from the declaration. The two remedies are of such different natures that, by common law, they cannot be joined in the same action even in separate counts. — Mobile & Montgomery Ry. Co. v. McKellar, 59 Ala. 458. But, when we consider the master’s liability as consequential, and in case, the decisions referred to are entirely reconcilable with this rule of pleading.
The cases which appear to be adverse to our conclusion are either those in states where code systems have abolished common law forms of action, or where the considerations we have adverted to were not in mind. Of the latter class is the case, in our own court, of Louisville & Nashville R. Co. v. Dancy, 97 Ala. 338,— an opinion delivered by the present writer.
The doctrines in respect of the relations of principal and agent, and master and servant, as applicable to the acts and contracts of corporations, are well established. It is not essential to an act or contract which binds a corp,oration that it be doue or entered into, or authorized, by'the corporate entity -itself, as x’epresented by the governing boai’d of stockholders. It is well recognized
It is not our purpose now to undertake to lay down any general rule to govern all cases, as to what circumstances, or extent of power conferred, are essential to constitute a vice-principal, whose acts will be directly visited upon the corporation, within the principle above declared. Each case, as it arises, will be determined eccording to its peculiar facts.
With these views, we adhere to the opinion formerly delivered in these cases by Justice Thorington, and reverse the judgments of the City Court, and order judgment to be entered in this court in favor of the defendant, in each case.
Reversed and rendered.