Opinion
7 Div. 537.
February 9, 1939.
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
Crampton Harris and D. Harry Markstein, Jr., both of Birmingham, for appellant.
The acts of an alter ego, acting within the line and scope of his employment, are binding on his principal, even though not authorized. Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48; Hotel Tutwiler Op. Co. v. Evans, 208 Ala. 252, 94 So. 120. Goodall, the superintendent of the tire manufacturing department of the defendant, was its alter ego in directing the assault and battery of the plaintiff. Southern R. Co. v. Beaty, 212 Ala. 608, 103 So. 658; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am.Rep. 152; Union Naval Stores Co. v. Pugh, supra. Defendant ratified the assault on plaintiff. Collum Motor Co. v. Anderson, 222 Ala. 643, 133 So. 693.
Coleman, Spain, Stewart Davies, of Birmingham, and Hood Murphree, of Gadsden, for appellee.
The burden of proof is on the one charging a person as an alter ego of defendant company, and the status is determined from proof of the character of his duties performed and not by a designation of his rank, 4 Words and Phrases, Second Series, Vice Principal, p. 1179; Indiana Union Tr. Co. v. Long, 176 Ind. 532, 96 N.E. 604; Stearns Culver L. Co. v. Fowler, 58 Fla. 362, 50 So. 680; Chicago, I. L. R. Co. v. Barker, 169 Ind. 670, 83 N.E. 369, 17 L.R.A., N.S., 542, 14 Ann.Cas. 375; Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A., N.S., 772; Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48; Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am.Rep. 152; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Southern R. Co. v. Beaty, 212 Ala. 608, 103 So. 658. A vice principal is one placed in entire charge of a business or a district or branch thereof, and exercising complete control of the business or a particular branch without any supervision or control over him. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930; Groves v. James McNeil Bro. Co., 226 Pa. 345, 75 A. 600. A complaint charging an act directly authorized by the corporation is not supported by proof of an unauthorized act of an agent for which the corporation is liable on principle only of respondeat superior. Ex parte Louisville N. R. Co., 203 Ala. 328, 83 So. 52; Southern R. Co. v. Hanby, 166 Ala. 641, 643, 52 So. 334. Where master did not authorize, aid, abet or ratify wrongful act of the servant, his liability for assault and battery committed by servant while acting within line and scope of his authority is in case and not in trespass. Southern R. Co. v. Hanby, supra; Ex parte Louisville N. R. Co., supra. The master is not liable for assaults committed by agent from a motive or purpose solely personal to the agent. Western Union Tel. Co. v. Hill, 25 Ala. App. 540, 150 So. 709; Great A. P. Tea Co. v. Lantrip, 26 Ala. App. 79, 153 So. 296; Johnson v. Ala. Fuel I. Co., 166 Ala. 534, 52 So. 312; Palos Coal C. Co. v. Benson, 145 Ala. 664, 39 So. 727. The retention in employment, or the promotion of one committing an unauthorized assault, does not amount to ratification by the corporate defendant of the wrong so committed. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894.
The plaintiff, DeBerry, stated his cause of action against the defendant, Goodyear Tire Rubber Company of Alabama, a corporation, in three counts. In count 1, the plaintiff seeks to fasten liability upon the defendant for an assault and battery committed by the servants or agents of the defendant upon the doctrine of respondeat superior. The action, as presented by this count, is trespass on the case. Counts 2 and 3 are for a trespass vi et armis, charging the commission of the trespass by defendant, corporation, "acting by and through its agents, servants, or employees within the line and scope of their employment as such by the defendant." Counts 2 and 3 are trespass counts, and are, therefore, quite different in legal effect from count 1, which is, as above stated, in case. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Bessemer Coal, Iron Land Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A., N.S., 389; Ex parte Louisville N. R. Co., 203 Ala. 328, 83 So. 52; Southern R. Co. v. Beaty, 212 Ala. 608, 103 So. 658; Edwards v. Russell, 222 Ala. 484, 133 So. 3.
The wrongs, made the basis of plaintiff's suit, were committed more than a year before the suit was brought.
In addition to the plea of the general issue, the defendant pleaded the statute of limitations of one year, Code 1923, § 8949, however, the court sustained plaintiff's demurrer to this last plea, as an answer to counts 2 and 3, but overruled the demurrer to said plea as filed to count 1.
At the conclusion of the evidence, the court, at the written request of defendant, gave the general charge, with hypothesis, in favor of the defendant. The giving of said charge, and the sustaining of defendant's objection to a question propounded by plaintiff to himself, when testifying as a witness in his own behalf, constitute the only errors assigned upon the record.
We have carefully read and considered all the evidence in this case, and it shows conclusively that the plaintiff was an employee of the defendant and that while he was working in the defendant's plant, performing his regular and customary duties, he was assaulted and beaten by a number of his fellow servants, and that he was forced by his assailants to leave the plant. It appears that this occurrence took place on June 8, 1936, shortly after the plaintiff had entered the plant to commence his daily work. It appears that at this plant there were two rival labor unions, one known as the United Rubber Workers of America, which was at that time affiliated with the "A. F. of L.," but not with the "C. I. O." However, the United Rubber Workers of America some time shortly thereafter became affiliated with the "C. I. O." The other labor union at the defendant's plant was known and called the Employees' Representative Plan. The plaintiff, at the time he was assaulted and beaten, was a member and officer of the United Rubber Workers of America.
The evidence shows that other members, three or more, of the United Rubber Workers of America, were assaulted in the plant, at or about the time the plaintiff was assaulted. There seems to be little or no doubt that the plaintiff had interested himself in getting the workers to join his union.
The evidence shows without conflict that the fighting was between the servants or employees of the defendant company, but just what led up to the fight, the evidence does not show. It wholly fails to show that the defendant corporation authorized, directed, or participated in it in any way, or that it thereafter ratified the unlawful acts of the employees, who committed the wrong.
The contention of the appellant is that there was present, at the time the fight or difficulty occurred, one Bob Goodall, a foreman of the defendant's tire department, and that he had a directing hand in the matter. It is also contended that, under the evidence, the said Goodall was then and there the alter ego of the defendant. The evidence wholly fails to show, or to afford an inference, that the said Goodall was an alter ego of the defendant, within the rule of our cases. It at most shows that he was one of the defendant's foremen in the shop, but there is a total absence of evidence to show what Goodall's duties were, or the scope of his authority.
The only evidence tending to show the status of said Goodall in defendant's employment was substantially as follows, and the evidence was given by the plaintiff:
"Mr. Bob Goodall was the foreman under whom I worked on my shift. Mr. Neiger was division superintendent, above Mr. Goodall; Mr. Michael was above Mr. Neiger, he was superintendent in charge of the entire plant. Mr. Goodall was the tire room foreman and he had sub-foremen under him. They have three shift foremen, one to each shift. I don't know whether you would call Mr. Goodall superintendent of all three shifts or not. He was in charge of the three shifts."
The burden, of course, was on the plaintiff to show, if he would hold the defendant liable for the acts, or omission to act, of said Goodall, the duties and scope of the authority of said Goodall. Certainly, within the rule of our cases, the evidence falls far short of showing, or tending to show, that said Goodall was, as to the business confided to him, a vice-principal, and, therefore, alter ego of the corporation, rendering the corporation liable, in an action of trespass, for his acts. Ex parte Louisville N. R. Co., 203 Ala. 328, 83 So. 52; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Bessemer Coal, Iron Land Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A., N.S., 389; Birmingham R. L. P. Co. v Hayes, 153 Ala. 178, 44 So. 1032; Newberry v. Atkinson, 184 Ala. 567, 64 So. 46; Louisville N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930; Union Naval Stores v. Pugh, 156 Ala. 369, 47 So. 48.
The defendant was, therefore, entitled to the general affirmative charge upon all counts of the complaint, — as to count 1, for that the cause of action stated therein was barred by the statute of limitations of one year, and as to counts 2 and 3, for lack of evidence tending to show that the defendant corporation authorized, or directed, or aided or abetted in the assault and battery committed upon the plaintiff, or ratified said act.
The trial court committed no error in sustaining the defendant's objection to that part of the question which called for testimony tending to show that Crowe, one of the alleged participants in the assault and battery, had since been promoted. Comerford v. International Harvester Co., 235 Ala. 376, 378, 178 So. 894. Besides, this evidence was admitted at a later period of the trial.
We find no error in the record. The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.