Case v. Hulsebush , 122 Ala. 212 ( 1898 )

HARALSON, J.

— The liability of a master for the wrongful acts of his agents and servants, whether the master is a natural person or a corporation, makes no difference, is a question which has been repeatedly before this court, and is well settled.

In L. & N. R. R. Co. v. Whitman, 79 Ala. 328, it is, perhaps, as well settled as elsewhere, and for the purposes in hand we extract what was there said, in consonance with previous and following adjudications of this court on the subject, viz.: “The clearly established doctrine now is, that railroad corporations are liable for all acts of wantonness, rudeness or force, done, or caused to be done, by their agents or employés, if done in and about the business or duties assigned to them by the corporation; and the rule for vindictive or punitive damages against Such corporation, for abuse by their employés of the duties and powers confided to them, is the same as that which applies to natural persons, who are guilty of similar misconduct. It is confined, however, to abuses perpetrated in the line of duties assigned to them, and does not extend to any tort, wantonness, or wrongful act the employés may commit, in matters not connected with their services to the railroad corporation. In the line of their assigned duties, they stand in the place of the corporation; without that line, the corporation is bound by nothing they may do.” — Goodloe v. M. & C. R. R. Co., 107 Ala. 233; Lampkin v. L. & N. R. R. Co., 106 Ala. 287; Collins v. A. G. S. R. R. Co., 104 Ala. 390; M. & O. R. R. Co. v. Seales, 100 Ala. 368; Gilliam v. S. & N. A. R. R. Co., 70 Ala. 268; Cox v. Keahey, 36 Ala. 340.

The complaint in this case, after stating that defendant was the tax collector of Mobile county, and that Duncan P Case, his son, was one of his deputy tax collectors, charges that “said Duncan P. Chase as such deputy tax collector, and under color of his office, wrongfully and illegally endeavored to collect, for his said father and tax collector, a fee from the plaintiff', which the defendant in person, or through others, had wrongfully and illegally charged against plaintiff as a tax payer, and because plaintiff lawfully refused to pay such illegal demand, the said Duncan P. Case cursed and abused plaintiff and assaulted and beat him Avitli an inkstand and hurt him,” etc.

It Avas shoAvn that the defendant Avas absent from his office when the difficulty between plaintiff and his son, Duncan P., occurred, and it was admitted that the 50 cents tax collectors’ fee Avas am improper charge against plaintiff. The tax collector examined as a Avitness explained how the fee came upon the slip made out showing plaintiff’s taxes, and that it Avas not his intention to claim it unless it became due by default, and to strike it out if paid before default.

The plaintiff testified in substance that he went to the tax collector’s office in October, 1898, to pay his taxes, when Duncan P. Case came forward to wait on him; that Case handed him the tax-slip, and after overlooking it, witness said to him: “This is all A-eryAvell with the exception of this extra 50 cents. You don’t Avant that, do you?” Case replied, “Yes, I do, you have to pay that.” Witness said, “I don’t think so.” Case said “Explain yourself.” Witness answered: “I am not positive, but as Avell as I can see, my judgment is that the tax collector has not made his second round in the Avard to collect his taxes, and furthermore, I have not received any official notice in regard to my taxes, and for that reason, I thought I was exempt from that tax fee for the collection;” that said Case then said in a boisterous manner : “No, your taxes have been due since the first of October, and he (would) be damned if 1 could bulldoze the office.” Witness replied: “If that was the case, he Avould not pay any,” and proceeded to fold up the tax slip and walk aAvay, when Case said: “Hold on, damn you, if you don’t want to pay your taxes, you can’t take that out of the office either,” when Avitness replied, “very well,” and iiung the bill on the counter, and walked out; that he went to the office of Dermant & Duggan, and asked Duggan Avhat he thought of it, explaining to him what had occurred; that Duggan thought witness was entitled'to the deduction, but to be positive, he rang up and conferred witli Mr. Gray, and told witness that he was not liable for the fee, and to tell young Case what Gray said; that witness returneed to the tax collector’s office accompanied by Mr. Duggan, who went at his request; that on reaching the office he said to Case: “I have again come to proffer you payment of my tax less the collector’s fee, as I have been advised through Mr. Gray, you are not entitled to the collector’s fee at this time,” Avhen Case got boisterous and said: “He didn’t give a G-d-for witness or Mr. Gray either, and furthermore, he didn’t propose to let such d-d things as witness bulldoze-that office, and Avanted Avitness to distinctly understand that he and not Avitness Avas running that office.” Witness replied that he had not come for trouble, but that he proposed to pay him AAdiat he Avas entitled to and no more, AAdien Case replied, if he (Avitness) had not been soG — d:— bulldozing Avhen he first came in, he (Case) would have given witness the tax slip and let him go to the Avard and have the fee deducted. Witness replied: “To the contrary, young man, you refused to let me retain the tax slip;” that Case replied: “You mean to call me a damn lie?’’ and witness said: “I don’t mean to imply anything at all, but you can take my Avord as you see fit.” Case then said something else, hurling an inkstand at Avitness hitting him a glancing bloAV on the arm, etc.

On cross-examination, Avitness testified that at the time the ink-stand was tliroAvn, the controversy.was not whether Case had given Avitness the bill or not, that the controversy was caused by whether he (witness) meant to insinuate that he had called Case a d — n liar; that was Avhat the controversy was and nothing in regard to the bill at all; that it was simply in regard to his calling Case a liar.

Mr. Duggan testified, corroborating substantially the testimony of plaintiff as to the difficulty. 1-Ie stated that as he understood it, the fuss greAv out of the Avords, “do you mean to insinuate I am a liar,” and what immediately led up to this was Case saying, “If you had come in here in the right kind of manner the first time.”

Duncan P. Case testified for the defendant, giving his account of the first intervieAv between plaintiff- and himself-, quite differently from that given by plaintiff; his testimony tending to show that he was not rude or offensive to plaintiff, but that plaintiff was offensive in manner to him. He testified as to the second interview, substantially, that when plaintiff returned with Duggan, he said: “Look here, I have been down to see Mr. Gray about this matter, and he told me you were not entitled to any fee on it,” and that he, Case, replied: “It tvas not necessary to come down to Mr. Gray,” and “Oh damn you and Mr. Gray both,” stating, “I gave you the bill here;” that plaintiff replied, “You didn’t give me the bill,” when witness said, “Yes, I did,” and plaintiff said, “No ,you did not,” when witness said, “You mean to say Í am a liar,” and plaintiff replied, “If you want to take it that way, let it go,” when tvitness picked up the ink bottle and threw it at plaintiff. He also testified that when he threw the bottle, nothing was said about the fee, and that his father, the defendant, when he left had instructed him and the other deputies to take off all collector’s fees from bills paid before his appointment.

We have been thus particular to set out at length the allegations of the complaint and evidence in the cause, that we may the better apply the rulings of the court thereto.

We have no difficulty in holding the first and second interviews between the plaintiff and Duncan P. Case as so near together, and all relating to the same matter, as one transaction, and that all that was said and done between them on the occasions were of the res gestae thereof. It all grew out of the fifty cent tax fee, and tends to establish the averments of the complaint.

The charge given by the court at the request of the plaintiff was based on evidence introduced on the trial, not incorrectly hypothesized, and was properly given.

Charges Fourth and Fifth, given for defendant, • contained the law of the case, as fully, and certainly as fairly as could be expected or required.

There was no place for the general charge numbered 1, requested by defendant.

When considered with reference to the complaint and the evidence, we discover no error in the refusal to give the remaining charges requested by the defendant, numbered 2, 3 and 6. The 2d and 6th were attempts to separate the matter of Duncan P. Case’s alleged effort to collect an illegal fee from the plaintiff, and the question of veracity that grew thereout between them, and to disconnect the two as different and independent transactions, so that if the first was a matter within the line of the deputy’s duties, the latter was not, and therefore the employer was not liable for the tort of the deputy in such alleged independent and wholly personal matter. But the evidence does not admit of any such distinction. The 3d was faulty and misleading. It postulates that the said Duncan P. Case must have acted within the scope of his employment in committing the alleged assault a.nd battery, to render the defendant guilty. It should have hypothesized, that it was necessary to appear that he committed the act within the scope of his employment and in the accomplishment of objects within the line of his duties, or, that it was committed in and about the business or duties assigned to him by his employer. The words, “within the scope of his employment” as employed in the charge, without more were not without confusing and misleading tendencies. — L. & N. R. R. Co. v. Whitman, 79 Ala. 328; supra; Mobile & Ohio R. R. Co. v. Seales, 100 Ala. 374.

Taken in its connection with the context of the main charge, and with the immediate connections with which it was given, that portion of it excepted to by defendant, contained no reversible error.

Affirmed.