Opinion
8 Div. 495.
November 8, 1923.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
E. W. Godbey, of Decatur, for appellant.
The mere fact that Dix collected for the owner created no agency. K. T. Coal Co. v. Millett, 50 Mo. App. 382. The principal, if so, was not liable, if Dix tarried after being requested to leave, nor for his remarks subsequent to finding out the tenant was not present. Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653; A. G. S. v. Pouncey, 7 Ala. App. 548, 61 So. 601; Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N.W. 507, 45 L.R.A. (N.S.) 314, Ann. Cas. 1913E, 823; Repub. I. S. Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516; Cox-Brainard Co. v. Keahey, 36 Ala. 340, 76 Am. Dec. 325; Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 So. 210, 9 L.R.A. (N.S.) 929, 124 Am. St. Rep. 90; L. N. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A.L.R. 251; Wise v. Curl, 177 Ala. 324, 58 So. 286; Callahan v. Gegan, 59 Ill. App. 347. Defendant's motion for a new trial should have been granted.
Sample Kilpatrick, of Hartselle, for appellee.
Any act of the agent, which was intended to accomplish the purpose of his agency, was the act of the principal, for which the principal is liable. Empire Col. Co. v. Hammonds, 17 Ala. App. 60, 81 So. 838; Jebeles Co. v. Booze, 181 Ala. 456, 62 So. 12; Ala. F. I. Co. v. Balodoni, 15 Ala. App. 316, 73 So. 205.
The suit is by a wife to recover damages for trespass and punitive damages for injury to her person. In Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A. (N.S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740, it was declared that, irrespective of the ownership of the house, the wife must sue for personal injuries to her inflicted without physical violence by one entering the house occupied by herself and husband. Parker v. Newman, 200 Ala. 103, 107, 75 So. 479. In Republic Iron Steel Co. v. Self, 192 Ala. 403, 406, 407, 408, 68 So. 328, 329 (L.R.A. 1915F, 516), the court said:
"But if his business is done, or is taking care of itself, and his servant, not being engaged in it, nor concerned about it, but impelled by motives that are wholly personal to himself, and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when such an act has and can have no tendency to promote any purpose in which the principal is interested, and to promote which the servant was employed, then the wrong is the purely personal wrong of the servant, for which he alone is responsible. * * * The question again came before the court in Hardeman v. Williams, 169 Ala. 50, 53 So. 794, where under an amended complaint it was held, under the facts of the former appeal, that a question for the decision of the jury was presented. Mr. Justice Sayre said: 'The principal is responsible for the acts of his agent done within the scope of his employment, and in the accomplishment of objects within the line of his duties, though the agent seek to accomplish the master's business by improper or unlawful means, or in a way not authorized by the master, unknown to him, or even contrary to his express direction.' * * * In the case before us the evidence shows that the offensive words were used by Mr. Wall, not as appellant's agent, in the doing of an act of the agency, nor as incidental to the carrying on of his master's business, but simply as the result of his own feeling of resentment at appellee's remark about his individual character. * * *"
In the instant case there was more than mere offensive words (L. N. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A.L.R. 251; Republic Iron Steel Co. v. Self, supra); there was the continuing act, the presence against the will of plaintiff in her home and the offense to her therein by act as well as words. In New Morgan County Building Loan Association v. Plemmons (Ala. Sup.) 97 So. 46, the affidavit, claim bond, order quashing same on motion of said loan association, and its indemnifying bond given the sheriff, were held competent as tending to show that defendant knew Mrs. Plemmons claimed the property, and that it induced the sheriff to levy the writ of attachment. Though this action was after the time of the alleged trespass on the part of Dix, it had a tendency to show in what capacity the latter acted on the occasion of the alleged trespass — whether in his individual capacity, or as defendant's agent, or that of the original landlord. Tenn. Valley Bank v. Valley View Farm et al. (Ala. Sup.) 97 So. 62; that is to say, the foregoing was competent evidence, when taken in connection with the testimony of plaintiff's husband, who said:
Ante, p. 16.
Ante, p. 123.
"I rented it from T. M. Dix. He was the agent for the defendant, the Building Loan Association. I rented it from the Building Association through T. M. Dix, as agent. I paid the rent to T. M. Dix, or at his office. He said he was collecting these rents as the agent for the Building Loan. I remember the day he was at our house, and the time, and my wife's condition afterwards. After that time Dix and I had a little talk about the payment of the rent. That was after this trouble occurred, when we had a little talk about it. There was an attachment issued later to collect this rent. I know of no part that Mr. Dix took in the attachment proceeding, other than he was helping to run the attachment and helping to work it up."
The affirmative charge is properly refused, when there are inferences that may be drawn from the evidence unfavorable to the party to the suit requesting such charge, and in determining the propriety of the general charge the evidence against whom it is given must be taken as true. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. The attachment proceeding to collect the same rent that was due, and which Dix was trying to collect at plaintiff's house on the occasion in question, together with plaintiff's testimony that he said the rent was due the New Morgan County Building Loan Association; that "he would have to take the furniture, after he asked what furniture I had; * * * would have me put out in the street with my children, and if my husband objected he would have him arrested; * * * he would levy on the furniture and everything we had, and leave me without a place to stay" — was competent evidence. There was no error in admitting evidence of the activities of Dix in and about the issue and levy of the attachment on the property of plaintiff and her husband for the collection of the rent. The testimony was limited to the question of agency. Jebeles, etc., Co. v. Booze, 181 Ala. 456, 62 So. 12.
There was no error in refusing defendant's charge L. It was misleading in the use of the words "by acts within the scope or purview of authority conferred by defendant." (Italics supplied.) It was not required that Dix had been given express authority to act as he did in and about the collection of the rent for defendant; it being sufficient that he was acting for it with authority, express or implied, for the collection of rents due defendant, and while so doing acted as and said what he did. Moreover, the matter was sufficiently covered in the general charge of the court.
Charges 17 and P. requested by defendant, ignored a tendency of the evidence that Dix, under the circumstances indicated, made the threats or did the objectionable acts after he was requested or ordered to leave plaintiff's home, and the effect of such language or acts, done and said, under the circumstances, on plaintiff to her alleged injury.
Defendant's refused charge 3 sought to ignore the phase of the evidence that the acts and words of Dix were done and spoken in a rude, insulting, and rough manner; thus was the refusal justified. Moreover, the jury were properly instructed in the oral and in a given charge.
Charge 5, refused to defendant, is not to the effect stated in brief of counsel. The reference, no doubt, was to charge 4 (being duplication of assignments of error), and will be so considered. It was fairly covered by given charge 13 and by the oral charge.
Charges 15 and 16, refused to plaintiff, misplaced the burden of proof as to the duty of Dix to immediately leave the premises after notice and after having made known his mission, and having failed in his mission to collect the rent. He should, thereupon, have departed immediately, as the jury were instructed it was his duty to have done.
Although a witness may use contradictory expressions in testifying — on direct and cross-examination — the affirmative charge may not be given, for the credibility of the witness is for the jury. Jones v. Bell, 201 Ala. 336, 77 So. 998.
After a careful examination of the evidence bearing on the ground of the motion — that the result was a quotient verdict — we are of opinion that it is well founded. Southern Ry. Co. v. Williams, 113 Ala. 620, 21 So. 328. The rule is that evidence of what a juror thought or why he agreed to a verdict may not be received to impeach the finding; such evidence has been admitted to sustain the action of the jury in returning such verdict. Leith v. State, 206 Ala. 439, 90 So. 687; Ala. City, G. A. Ry. Co. v. Lee, 200 Ala. 550, 76 So. 908; B. R., L. P. Co. v. Clemons, 142 Ala. 160, 37 So. 925.
It was competent, against defendant's due objections and exceptions, to examine the witness Eaves as follows:
"Q. Mr. Eaves, was there any agreement, before you put down those figures and divided them by 12, that the jury would return a verdict for the amount that was shown by the division? A. There was not.
"Q. After these 12 amounts were put down and divided by 12, did the jury all agree on the verdict that was rendered? A. Yes, sir."
The questions were not specific in showing that individual jurors did not agree that they would respectively vote for a verdict in amount indicated by the quotient in evidence and returned into court with their verdict; that is, the questions merely show what the the jury agreed as a body it would do, and the evidence convinces us that the individual jurors agreed in advance to abide by the result. B. R., L. P. Co. v. Moore, 148 Ala. 115, 130, 42 So. 1024; Ala. City, G. A. Ry. Co. v. Lee, 200 Ala. 550, 553, 76 So. 908.
The motion for a new trial should have been granted on the ground that a quotient verdict was returned. The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.