Southern Railway Co. v. Hanby

SAYRE, J.

Appellee sued the defendant corporation and its servant jointly to recover damages .for an assault and battery suffered. by him, while he was a passenger, at the hands of the servant. In each count of .the complaint, it is alleged that the defendant Malone, while acting with the scope of his employment by the defendant corporation, did assault and heat the plaintiff. It is entirely clear that these counts state an action of trespass vi et armis against the defendant Malone. Equally clear is it that each of them proceeds on the principle of respondeat superior in. imputing liability to the defendant corporation; nothing being alleged, from which it might he inferred that the master committed, authorized, aided, abetted, or subsequently ratified the wrongful act. It is settled that the master’s liability, under such circumstances, is consequential upon the servant’s unauthorized act, and that the action against the master is in case. — Southern B. T. & T. Co. v. Francis, 109 Ala. 224 , 19 South. 1 , 31 L. R. A. 193, 55 Am. St. Rep. 930 , opinion by Head, J.; City Delivery v. Henry, 139 Ala. 161 , 34 South. 389 . Prior to the statute trespass and case could not be joined in the same declaration. It being impossible to frame an action against master and servant in the same form for *644 the intentional and unauthorized trespass of the servant, it may be there are insuperable obstacles in the way of joining counts against master and servant for a wrong of that description notwithstanding the statute. However that-may be, distinct and independent causes of action in tort cannot be joined in the same counts.— L. & N. R. R. Co. v. Cofer, 110 Ala. 491 , 18 South. 110 ; H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, 10 . South. 274; A. G. S. R. R. Co. v. Shahan, 116 Ala. 302 , 22 South. 509 . Our recent case of Southern Ry. Co. v. Arnold, 162 Ala. 570 , 50 South. 293 , holds nothing to the contrary. There the action, though in tort against master and servant jointly, was in case against them both, and in consequence involved no misjoinder of actions. It follows that there was a misjoinder of actions and parties in each count of the complaint.

But appellee contends that the demurrer interposed failed to take the point that there was a misjoinder. Answering a complaint each count of which undertook to state a cause of action against two defendants jointly, the language of the demurrer was that each count failed to state facts sufficient to constitute a cause of action against the defendants jointly, and this language was varied so as to say of each count that it “affirmatively shows that it is not a joint cause of action.” It seems to us that a ruling to the effect that these assignments of grounds of demurrer fell short of calling the •court’s attention to the misjoinder here insisted upon would approach hypercriticism. The burden and stress of the demurrer’s complaining was that there was a misjoinder of parties. We are of opinion that the de•murrer took the point and should have been, sustained.

Reversed and remanded.

Dowdell, C. J., and Anderson and Mayfield, J-J., concur.