Newberry v. Atkinson

MAYFIELD, J.—

(dissenting). — I cannot concur in this decision. It is rendered solely upon the authority of City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389. There are 40 odd assignments of error not treated or noticed, for the reason that under the Henry Case the general affirmative charge could, and should have been given for the defendant; and hence all errors, if such there were, were without possible injury to the defendant. I concede that if the Henry Case is good law, and is to stand, the decision is otherwise correct; but I insist that the Henry Case is bad, court-made law, and that the court that made it ought to revoke it. It involves no property rights, but only questions of correct procedure and practice. I believe I speak accurately when I say that the opinion of both the bench and the bar is well-nigh universal that the decision in that case, as to the question here involved, is wrong. I also believe that there is not now a judge on the bench, nor a lawyer at the bar, who would so decide the question involved if it were one of first impression.

I confess that I am not one of those who believe that it is the sole business of appellate courts to affirm judgments and decisions of lower courts. I believe it to- be their office, function, and duty to review and correct erroneous decisions, including their own. What I have *575before said, on similar occasions, I here repeat, and that is, that the doctrine of stare decisis is an ancient and a wise maxim, bnt that it is not more ancient and wise than, nor half so beneficent and- jnst as, another legal maxim, “Fiat justitia ruat coslum.” The one is the doctrine of expediency; the other of righteousness and eternal justice. Man is the author of one; God, of the other; and when the two oppose each other, there should be no hesitancy as to which we should follow.

As before stated, the rule of law I seek to depart from involves no vested property rights. It is purely a highly technical rule of procedure and practice. It worked injustice in the Henry Case, and in every case in which it has been followed, and of necessity must con]tinue so to do, as long as it is followed. If the plaintiff and her son are not guilty of perjury, it works an injustice in this case. The plaintiff and her son both swore that the flagman of the defendant’s train wantonly, willfully or intentionally kicked a stool from under the plaintiff, a passenger, as she was in the act of stepping from the defendant’s car, thereby throwing her to the ground and inflicting serious injuries. Yet this court decides that there was no question for the jury to pass upon, because there was no proof that the directors of the railroad corporation ordered the flagman to so kick the stool, or that such directors otherwise participated in the wrongful act of the flagman. Who ever heard of a board of directors ordering a flagman to kick a stool from under a passenger alighting from a train? Would any one reading the complaint in this case, who did not know of the Henry Case, nor of the decisions of this court following that case, ever suspect that the plaintiff would have to offer such proof in order to recover? If it can be conceived that the directors of a great railroad corporation should ever *576pass such, an ordinance or by-laws, would it not be wholly ultra vires and void, and not binding on the flagman or the corporation? It is true that the cox’poration, in such a case, might still be liable for the wrongful act of the flagman, but it woxxld be because it was answerable for the wrong of the flagman, and not for the wrong of the directors. The directors of the corporation could not, if they tried, bind the corporation or justify the wrongful act of the flagman. The corporation is equally liable for the wrongful act of the flagman, whether he be authorized or prohibited by the directors as to his wrongful act. As to this matter complained of, the railroad corporation acts by and through its flagman or its conductor, and not through its board of directors. This is common law, common knowledge, and common sense.

The most that is now claimed for this rule, announced for the first time in the history of American or of English Jurisprudence, is that it is theoretically or technically correct. As I understand the arguments of the advocates of the doctrine, it is not claimed that, practically speaking it is correct. The most that has ever been claimed for it is that it was and is a species of legal technical lore that the average judge or practitioner could not comprehend. If the rule complained of ever was, or is now, theoretically or technically correct, I confess I cannot understand the reasoning which establishes or justifies its correctness. A corporation, as an entity, cannot have a will or an intent; nor can it kick a stool from under an alighting passenger. As an entity it can act only by and through its officers, agents, or-servants; and in certain cases it is civilly and legally responsible and liable for the acts of those who act for it, whether the act be carefully and prudently, or wantonly, willfully, or maliciously, done.

*577In. the case at bar it was the act of the flagman which was complained of, and not the act of the directors; and if the plaintiff’s evidence was true, it was proven to have been done as alleged. And it was proven that plaintiff suffered injuries and damages in consequence of that wrongful act. Was the defendant corporation legally answerable in damages for this wrongful act of the flagman? The court says, Yes; but the plaintiff alleged that the corporation did the wanton or willful act, acting through or by its flagman, and to support this allegation there must be proof that the board of directors authorized or ordered, or participated in, the wrongful act. To this last proposition, which is the doctrine of the Henry Case, I cannot agree. To my mind it is not correct, theoretically, technically, practically, or in any other way or sense. To my mind it is a specious argument, founded on casuistry or sophistry, and not upon logic. I must add, however, that it is probable that I am in error; the defect is probably of my power of reasoning or comprehension, but I can only say that I have endeavored faithfully and conscientiously to understand and to accept the doctrine announced in Henry’s Case and followed in this, but I cannot do so.

The decision, to my mind, is further confused and self-contradictory, in this: The decisions of which I complain hold that if the complaint alleges that the corporation, acting by and through its flagman, negligently or carelessly kicked the stool from under the passenger, and the proof shows that the flagman did so kick the stool, then there is ho variance, but that if it alleges that the corporation, acting by and through its flagman, wantonly or willfully kicked the stool, then proof that the flagman so kicked the stool does not prove the allegation, but you must then prove that the *578directors either kicked the stool, or authorized or ordered it to be kicked, or otherwise participated in the kicking. I confess that I cannot understand the reasoning which supports this distinction. The reason assigned is that the action in the first instance is case, while in the other instance it is trespass. If the corporation was not liable in trespass for the wrongful act of the flagman, but was, for the same wrongful act if committed by the directors, then I could see some reason for this distinction; but, as the court concedes that the corporation is liable in trespass as well as in case for the wrongful act of the flagman, the reason for the distinction fails.

Moreover, I take it to be a matter of common knowledge that directors of railroad corporations do not assist passengers in alighting from trains, and do not place stools for the purpose, and do not negligently or wantonly, kick or remove them from under passengers alighting from trains; that these acts are universally done by conductors, flagman, porters, or other servants of the railroad company accompanying the trains. No one reading the complaint in this case, whether he be layman, lawyer, or judge, would ever suspect that there was any intention on the part of the pleader to allege that the directors of the corporation had anything whatever to do with the moving of the stool complained of; and hence to hold that proof that they did participate in the wrongful act is necessary to prove the case alleged is to employ legal principles beyond my ken.

In my judgment the basic error in the Henry Case, and in this, and all other cases following the Henry Case, is in treating the case as if it were necessary, to fix liability on the corporation, that the directors or governing body should participate in the particular wrong complained of; that is to say, that the corpora*579tion was not liable for tbe wanton or willful act of tbe flagman unless tbe act was expressly authorized by an ordinance or by-law of tbe corporation, or was otherwise actively participated in by tbe directors or governing body of tbe corporation. If this were true, tbe bolding in tbe Henry Case and in this case would be correct. But this is not true. It is settled law in this state and in every state of tbe Union that the corporation is liable for tbe wanton and willful acts of its servants and agents, as well as for their negligent ones done within tbe line and scope of tbe authority and duty of tbe agent or servant. Tbe corporation cannot exempt itself from, nor fix, its liability, by ordinance or bylaw in such cases. In such matters as assisting passengers onto and from trains, driving delivery wagons, ringing bells, blowing whistles, stopping trains at crossings, etc., corporations act by agents and servants, such as conductors, engineers, firemen, flagmen, porters, drivers, etc., and not by presidents, 'vice presidents, general managers, directors, etc. This is, I think, both statutory and common law, common sense and common knowledge.

Let us suppose that the complaint in this case bad alleged in terms what tbe court bolds that it alleged in effect — that is, that tbe directors, by ordinance or bylaw, authorized or directed, or participated in, tbe wrongful act complained of. Then tbe count would have been subject to demurrer, because it would have shown affirmatively, on its face, that such ordinance or by-law was both ultra vires and against public policy, and therefore utterly void. Tbe directors could not therefore bind tbe corporation by any such ordinance or by-law, nor could they so confer authority upon tbe flagman to so wantonly or willfully kick tbe stool from under passengers. On tbe other band, if it *580.were an act which they could authorize, and the flagman could not bind the corporation without such authority, then there would be some reason in requiring proof of. the director’s action in the premises; but such is not the case. In this matter the corporation acts by and through its flagman, and not its directors.