American Bonding Co. v. New York & Mexican Whiting Co. , 11 Ala. App. 578 ( 1914 )

BROWN, J.

On appeal in a civil action, to- sustain the jurisdiction of a trial court to- render a personal judgment, two things are essential: (1) The court must have acquired jurisdiction of the person of the defendant by dne service of process or by general appearance; (2) the complaint must state a substantial cause of action conferring on the court jurisdiction of the subject-matter, and the judgment must be responsive to the complaint. — Sweeney v. Tritsch, 151 Ala. 242, 44 South. 184; Kirkland v. Pilcher, 174 Ala. 170, 57 South. 46.

This appeal is prosecuted by the American Bonding Company of Baltimore City from a judgment by default against the Mobile Towing & Wrecking Company, O. B. Lyons, and the appellant; and by the only assignment of error in the record it insists that neither of these two prerequisites to the jurisdiction of the trial court is shown by the record.

The suit was commenced on the 6th day of June, 1913, by the issuance of a summons and complaint, and the sheriff’s return thereon is as follows: “Received June 6th, 1913, & on June 7th, 1913, I served copies of Avithin complaint & summons on B. R. Wilson, one of firm of W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation, & on Harry T. Hartwell, secretary Mobile Towing & Wrecking Company, a corporation & on June 9th, 1913,1 served a copy of within complaint & summons on O. B. Lyons.”

The judgment entry contains the following: “This day came the plaintiff by its attorneys, and it being proven to the court that service Avas had on the defendant the American Bonding Company of Baltimore City, a corporation, by service on Beverly R. Wilson, one of the firm of W. K P. Wilson & Son, as agents of the defendant the American Bonding Company of Baltimore City, a corporation, and that said Beverly R. Wilson was a member of the firm of W. K. P. Wilson & Son and also that W. K. P. Wilson and Son were the agents of the defendant the American Bonding Company of Baltimore City, a corporation, at the time of the service of the complaint and summons in this cause on said Beverly R. Wilson.”

The appellant does not question the sufficiency of the recitals in the judgment showing that proof ivas made as to the agency of W. K. P. Wilson & Son, and that Beveraly R. Wilson, upon whom service of process was made, was a member of that firm and an agent of the appellant; nor is there any question as to the sufficiency of the evidence to that end; but appellant insists that the sheriff’s return itself is not sufficient to authorize proof to be made that said Beverly R. Wilson was such agent. Appellant states its contention in brief as follows :

“The sheriff’s return on the summons and complaint in this cause states that service was had on B. R. Wilson, one of firm of W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation and on Harry T. Hartwell, etc. There is no comma between the words ‘agents’ and the American Bonding Company, nor does the word ‘of’ appear immediately after ‘agents,’ nor does the word ‘as’ appear immediately before ‘agents’ and after ‘W. K. P. Wilson & Son.’ Under this status, we insist that service was only had on Mr. B. R. Wilson, and that the words following ‘W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation,’ are mere descriptio personae.”

Section 5303 of the Code of 1907 provides: “When the suit is against a corporation the summons may be executed by the delivery of a copy of the summons and complaint to the president or other head thereof, secretary, cashier, station agent, or any other agent thereof.”

It has long been the settled rule in this state that, to authorize the rendition of judgment by default against a corporation, the record must show that proof was made to the court that the person on wffiom the process was served was, at the time of the service, an officer or agent of the defendant upon whom process could be legally served. — Roman v. Morgan, 162 Ala. 133, 50 South. 273; Planters’ & Merchants’ Bank of Huntsville v. Walker, Minor, 391; Hoffman, Ahlers & Co. v. Ala. D. & F. Co., 124 Ala. 542, 27 South. 485; Manhattan Fire Ins. Co. v. Fowler, 76 Ala. 372; Oxanna Bldg. Ass’n v. Agee, 99 Ala. 571, 13 South. 279. And likewise it is no part of the official duty of the sheriff to certify in his return the relation the person upon whom he makes service of process sustains to the corporation. No matter what the return states in this respect, the return of the sheriff standing alone will not support a judgment by default. — Planters’ & Merchants’ Bank of Huntsville v. Walker, supra; Roman v. Morgan, supra; Lyon v. Lorant & Krebs, 3 Ala. 151; W. & C. R. R. Co. v. Cole, 6 Ala. 655; Oxford Iron Co. v. Spradley, 42 Ala. 24; Independent Pub. Co. v. American Press Association, 102 Ala. 475, 15 South. 947. It being no part of the sheriff’s official duty to make this statement, we grant the contention of the appellant that the statement in the sheriff’s return immediately following the name of B. R. Wilson, to wit, “one of firm of W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation,” is merely descriptio personse. —Hoffman, Ahlers & Co. v. Ala. D. & F. Co., 124 Ala. 542, 27 South. 485. In other words, this statement in the sheriff’s return is merely surplusage, and adds no force to the return. It does not follow, however, that the judgment of the law and equity court must be reversed. It is not the duty of the sheriff to state in his return, but of the court, before the rendition of the judgment, to require proof to be made, that the person named in the sheriff’s return was, at the time of such service, an agent of the corporation upon whom service could be legally made, and the record in this case shows that such proof was made. — Roman v. Morgan, supra; Planters’ & Merchants’ Bank of Huntsville v. Walker, Minor, 391; Boyett v. Frankfort Chair Co., 152 Ala. 317, 44 South. 546.

Section 4143 of the Code of 1907 provides: “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.”

If the complaint in this case contained a substantial cause of action, and the judgment of the court is responsive to the complaint, the appellant cannot complain of errors or defects in the complaint which would have subjected it to demurrer. — Stewart v. Goode, et al., 29 Ala. 476; Kyle v. Caravello, 103 Ala. 153, 15 South. 527; Walker v. Mobile Marine D. & Mutual Ins. Co., 31 Ala. 530; Harris v. Plant & Co., 31 Ala. 644; Childress, et al. v. Mann & Co., 33 Ala. 207; Mahoney v. O’Leary, 34 Ala. 101; Foster v. State, 39 Ala. 239; Douglas v. Beasley, 40 Ala. 143; Martin v. Rushton, 42 Ala. 292; Watson v. Knight, 44 Ala. 354; Leach, et al. v. Bush, 57 Ala. 153. And this is true, notwithstanding the complaint might have been subject to the objection of a misjoinder of causes of action in one and the same count. — Walker v. Mobile M. D. & M. Ins. Co., 31 Ala. 529; Phillips v. Sellers, 42 Ala. 661; Whilden & Sons v. Merchants’ & Planters’ Nat. Bank, 64 Ala. 27, 38 Am. Rep. 1. In other words, the court in construing the averments of the complaint in this case must adopt a liberal construction, and if by treating all amendable defects as amended it appears from the facts stated, whether well or illy pleaded, a substantial cause of action is stated, then it is sufficient to sustain the judgment.

Chapter 114, art. 1, of the Code of 1907, dealing with the duties of harbor masters and port wardens of Mobile, provides for their election, qualifications, powers, and duties, and requires them to keep an office in the city of Mobile and there make and preserve a full record of their official acts and dockets of their official fees, showing their amounts, and from what vessels or persons collected, on what account, and at what time; and requiring the harbor master to keep such office open daily, except Sunday, and to remain in his office except when engaged elsewhere in the performance of his duties. Such records are at all times open to public inspection, free of charge.

Section 4906 specially prescribes the duty of harbor masters as follows: “The harbor master shall, on the request of the owner, master, or consignee of any vessel arriving within the limits stated in this article, regulate and station such vessel, and may from time to time remove any such as are not employed or immediately about to be employed in receiving or discharging cargo or ballast, if necessary to make room for such other vessels as may require, immediate accommodation for receiving or. discharging ballast or cargo. He shall not interfere with the selection by the master, owner, agent, or consignee of a vessel of a wharf, bulkhead or shore berth for the discharge or receipt of cargo or ballast where such wharves, bulkheads or shore berths so selected are erected within the limits and in the manner of construction fixed by the Mobile river commission, or station such vessel at other berths than the one so selected by the master, agent, owner, or consignee, unless the person or authority controlling such select-eel wharf prohibits its use for such purpose by the vessel. He may require persons in charge of vessels, made fast to a wharf or the shore, or lying in the stream, to adjust their spars so that they will not interfere with other vessels, or project over a street. He has authority to determine how far and when persons in charge of vessels shall accommodate each other in their station, but shall not have authority or power to prohibit vessels from receiving or discharging cargo while lying moored in the Mobile river, if they be so moored as not to unduly interfere with navigation, or with each other. But in case no request is made within a reasonable time by the owner, master, agent, or consignee, the harbor master shall have authority to locate vessels at proper places. The harbor master shall allow vessels to load in the stream above One Mile creek, but shall have power to place such vessels so as to avoid undue interference with navigation and with such others while taking on cargo, lying at anchor. He shall not require vessels taking berths above One Mile creek to occupy or make fast to shore berths against the wish of the officer or master controlling the vessel. It shall be the duty of the harbor master to cause to be printed from time to time and to keep posted in his office, and in all ship-candlers’ and ship-brokers’ offices, in the chamber of commerce, and in the cotton exchange, the laws and rules governing him and the harbor and river of Mobile. In case of sickness or temporary absence, the harbor master may appoint by writing in his stead, protempore, one of the other wardens, whn, while so acting, shall have all the powers of harbor master; but no such absence, except in case of sickness, shall extend beyond one week at any one time, unless leave therefor be first given him by the officers who' are charged with the appointment.”

Section 4907 provides for the election by the same persons authorized to elect the harbor master, of two deputy harbor masters, who shall hold office for- two years, or until their successors are elected and qualified, and provides that: “Each of said harbor masters shall be a regularly licensed pilot or ship master under the laws of the United States.”

Section 4908 provides for the examination as to the qualifications of candidates for election to the office of deputy harbor master before their election. Section 4909 is as follows: “Such deputy harbor masters, before entering on the duties of their office, shall give bond in the sum of one thousand dollars, for the faithful performance of their duties, to be taken and approved by and filed with the judge of probate for Mobile county, who shall at the same time administer to them an oath to faithfully perform all the duties required of them by law as such deputy harbor masters.”

Section 49.10 provides: “Said deputy harbor masters shall, when not engaged in shifting and mooring vessels, be at the office of the harbor master, Sundays excepted, from seven o’clock a. m. to six p. m., for the purpose of attending to the shifting and mooring of vessels, and from the time such vessels are anchored by the pilot bringing her up until she is again taken in charge by a pilot to go down to bay or to sea, one of said deputy harbor masters, and no other person, shall superintend the shifting of said vessel from berth to berth or to the mooring of her in any other place than that where she was anchored by the pilot bringing her up. During office hours the deputy harbor masters shall not engage in any other occupation save the duties herein prescribed, and when called on to do so, shall moor or shift vessels at any reasonable hours before or after said office hours.”

Section 4915 provides: “Any person in charge of a vessel, who resist or opposes the harbor master, or deputy harbor master, or acting harbor master, in the lawful execution of his duties, shall be fined by the may- or of Mobile not exceeding fifty dollars, to be collected, enforced, and applied as fines for violations of municipal ordinances of that city.”

In short, this chapter of the Code provides a complete scheme for the handling, mooring, and shifting of vessels in the harbor, the handling of their cargoes, and the protection of the harbor and property therein located. The harbor master and his deputies are officers of the state, upon whom it has imposed the enumerated duties, in the exercise of its police power, to carry into effect the state’s policy with reference to the protection of commerce in the harbor of Mobile.- — State, ex rel. Robertson v. McGough, 118 Ala. 164, 24 South. 395; Montgomery v. State, 107 Ala. 372, 18 South. 157; Ex parte Martin, et al., 180 Ala. 620, 61 South. 905.

The bond required by section 4909 of the Code is therefore in every sense an official bond, and within the provisions of section 1500 of the Code, and is obligatory on the principal and sureties thereon: “(1) For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof. (2) For the faithful discharge of any duties which may be required of such officer by any law passed subsequently to' the execution of such bond, although no such condition is expressed therein. (3) For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.”

The statute prescribes the form and conditions of official bonds, and it is immaterial that such bond is not in the form prescribed by the statute. If it is tendered and accepted as an official bond, the court will read into it the provisions prescribed by law and give it the form and effect of an official bond, regardless of its contents. — S. F. & G. Co. v. Union Trust Co., 142 Ala. 532, 38 South. 177; Code, §§ 1501, 1502, 1503; Ex parte Martin, supra; Mobile County v. Williams, Judge, etc., 180 Ala. 639, 61 South. 963.

The complaint in this case contains two counts, and, as we construe it, is an action of trespass on the case against O. B. Lyons, as deputy barbor master, the appellant (the American Bonding Company of Baltimore City) as the surety on the official bond of said Lyons, and the Mobile Towing & Wrecking Company, for negligently causing or allowing the steamship Kylestrome to be driven violently against Pier No. 7 with resultant injury to the plaintiff in knocking down and destroying an elevated unloading platform constructed thereon by plaintiff for its use in connection with its business, while said vessel was being shifted from her berth in the barbor to another point therein under the supervision and superintendence of said Lyons as deputy harbor master; the said Mobile Towing & Wrecking Company merely furnishing the tug and crew for the movement of the vessel under the supervision and superintendence of said Lyons as such deputy barbor master. The gravamen of the complaint is the negligence of Lyons concurring with the servants of the Mobile Towing & Wrecking Company, in the movement of the vessel, and is thus stated in the first count of the complaint :

“That the defendant O. B. Lyons did not faithfully perform bis duty as such deputy barbor master in superintending said shifting of said vessel, but was so careless and negligent in the discharge of said duty in superintending said shifting of said vessel, as to cause or permit said vessel to be driven against Pier No. 7 in snch manner that it violently knocked down and destroyed the elevated unloading platform constructed by plaintiff on said pier for its use in connection with its whiting plant on said pier; that the crew or engineer in charge of said tug so negligently and carelessly operated the same, in said shifting of said vessel, as to drive said vessel or permit it to be driven against said Pier No. 7 in such manner that it violently knocked down and destroyed the elevated unloading platform,” etc. '

The second count is the same as the first, except that it uses the term “grossly careless and negligent,” instead of the terms “careless and negligent,” used in the first count; but, as we construe them, each of these counts charges simple negligence on the part of the deputy harbor master and the Mobile Towing & Wrecking Company in the movement of the vessel. — L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35.

It is no objection to a complaint that it ascribes the injury suffered to concurrent coalescing breaches of duty by different persons, which have the effect to produce but a single cause of action. — L. & N. R. R. Co. v. Fitzgerald, 161 Ala. 405, 48 South. 860. It is but one tort committed by the concurring negligence of the joint tort-feasors, and such concurring negligence may be charged in one and the same count of the complaint.

Whatever may be the rule apart from the statute declaring the effect of an official bond, there can be no doubt that under its influence the sureties on the official bond are liable in an action of trespass or trespass on the case for the officer’s negligent performance of his official duties and for wrongful acts committed under color of his office or “by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” — Code, § 1500; Albright v. Mills, 86 Ala. 326, 5 South. 591; Burgin v. Raplee, 100 Ala. 434, 14 South. 205. And the person aggrieved may sue in his own name. — Code, § 2473; Hudgins v. Pickens County, 10 Ala. App. 377, 64 South. 472; Duffin v. Summerville, 9 Ala. App. 574, 63 South. 816.

When the averments of the complaint are construed in connection with the sections of the Code prescribing the form and conditions of official bonds, resolving all doubt and intendments in favor of, rather than against, the sufficiency of the complaint, as we must do, when the attack is general upon the judgment, as in this case, the complaint states a substantial cause of action sufficient to support the judgment. — Werten v. K. B. Koosa Co., 169 Ala. 263, 53 South. 98; Atlantic Coast Line Ry. Co. v. Jones, 9 Ala. App. 499, 63 South. 693; Smith v. Dick, 95 Ala. 312, 10 South. 845; Ritch v. Thornton, 65 Ala. 309; U. S. F. & G. Co. v. Union Trust Co., 142 Ala. 532, 38 South. 177; Albright v. Mills, 86 Ala. 326, 5 South. 591; Ex parte Martin, 180 Ala. 620, 61 South. 905.

These holdings necessarily result in the affirmance of the judgment appealed from.

Affirmed.