Alabama Fuel & Iron Co. v. Rice , 187 Ala. 458 ( 1914 )

SOMERVILLE, J.

The communication made by the bailiff to the jury that the trial judge had gone away, and that he would keep the jury together until the return of the judge several days later, unless they reached a verdict before that time, was, under the circumstances shown by the record, a presumptive coercion of the verdict which quickly followed the bailiff’s announcement.

This case cannot be materially distinguished from that of K. C., M. & B. R. Co. v. Phillips, 98 Ala. 170, 13 South. 65, where the reasons for the conclusion are fully stated; and on the authority of that case defendant’s motion to set aside the verdict should have prevailed, and its denial must result in a reversal of the judgment.

Although count 3 of the complaint claimed damages specially for his confinement for six days in the jail at Calera, and it appeared, without dispute, that that confinement was under a legal warrant, nevertheless plaintiff might, under his general averment, have recovered for his unlawful detention previous to his jail confinement; and the general charge was properly refused to defendant on this count.

It was necessary for plaintiff to show that Hinsley and Taylor were acting as agents or servants for defendant corporation at the time of and with respect to plaintiff’s unlawful' arrest by them, or that their acts in that behalf were subsequently ratified by defendant. On these issues it was competent for plaintiff to show that these parties had previously acted in the same capacity on defendant’s premises, if their acts were of such frequency and notoriety as to justify the inference that they were known to and acquiesced in by their alleged employer, or its alter ego.—Talladega Ins. Co. v. Peacock, 67 Ala. 253, 262.

The evidence on this subject was undoubtedly sufficient to justify the inference of their agency, and there was evidence of the approval and ratification of their acts by DeBardelaben, defendant corporation’s local manager; and the general charge Avas properly refused to defendant on the other counts of the complaint.

This result depended, of course, upon proof that . De-Bardelaben was clothed with authority with respect to the matters in question. We think, however, that his authority may well be inferred from the undisputed fact that he was assistant general manager of the company, and exclusively in charge of its local business and property, in connection with his acts of authority.

While other notorious acts of authority on the part of Hinesly, Taylor, and DeBardelaben on defendant’s premises, accompanied by their declarations showing their representative capacity, may be admissible to show their general employment and authority, under the conditions stated it was clearly improper for plaintiff or his witnesses to testify to their own statements made to" those persons on those occasions. And it Avas improper, also, for defendant’s witnesses, after stating that on a former occasion Taylor had warned a negro off the premises, to state, also, that Taylor had then beaten him with a strip of lumber.

It is, of course, well settled that the mere declarations of an alleged agent with respect to his agency are not admissible to prove the fact of agency, unless made in the presence of the principal and Avithout denial by him. Under this rule some of the conversations imputed to Hinesly and Taylor Avere, at least in part, inadmissible.

If Taylor unlaAvfully beat plaintiff in the course of his employment, and Avhile engaged in the furtherance of defendant’s business and purposes, though unnecessarily and with personal malice, defendant was liable to plaintiff for the battery. Charges 31, 34, and 35, refused to defendant, were at least misleading in failing to predicate that the beating of plaintiff by. Taylor Avas entirely dissociated from the accomplishment of Taylor’s purpose to arrest, or imprison, or eject plaintiff from its premises. See Palos v. Benson, 145 Ala. 664, 39 South. 727; Johnson v. Ala., etc., Co., 166 Ala. 534, 52 South. 312. Such dissociation cannot be affirmed as a matter of law from the evidence.

For the errors pointed out, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Anderson, O. J., and McClellan and de Graeeenried, JJ., concur.