In Birmingham Macaroni Co. v. Tadrick, 205 Ala. 540, 542, 88 So. 858, 860, it was said: "It is next most strenuously insisted that the declaration of Stamps, as testified to by witnesses for the plaintiff, was illegal and mere hearsay, and therefore should not have been admitted.Summary of this case from Kelly v. Hanwick
6 Div. 83.
February 3, 1921. Rehearing Denied April 21, 1921.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Tillman, Bradley Morrow, Charles E. Rice, and T. A. McFarland, all of Birmingham, for appellant.
A new trial should have been granted. 33 So. 8; 115 La. 498, 39 So. 540; 189 Ala. 665, 66 So. 628; 192 Ala. 471, 68 So. 348; 135 Ala. 614, 34 So. 16; 131 Ala. 177, 32 So. 493; 108 Ala. 233, 19 So. 309; 159 Ala. 310, 49 So. 310; 201 Ala. 613, 79 So. 45. The argument of counsel was not based on the evidence, and the case should be reversed. 68 Ala. 476; 75 So. 701; 145 Ala. 678, 40 So. 52; 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; 184 Ala. 413, 63 So. 554; 104 Ala. 471, 16 So. 538; 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; 17 Ala. App. 548, 86 So. 111. The declaration of Stamps was clearly inadmissible. 148 Ala. 63, 41 So. 984; 154 Ala. 639, 45 So. 641, 16 Ann. Cas. 305; 174 Ala. 63, 57 So. 245; 43 Ark. 289; 10 Tex. Civ. App. 231, 30 S.W. 450; 42 La. Ann. 470, 7 So. 537; 143 N.Y. 417, 38 N.E. 454, 26 L.R.A. 46, 42 Am. St. Rep. 738; 22 C. J. 444; 179 Ala. 317, 60 So. 82; 97 Ala. 211, 12 So. 176; 93 Ala. 191, 9 So. 590; 17 Ala. App. 211, 84 So. 551; 16 Ala. App. 408, 78 So. 324. The master was not liable for the acts of its employees under the facts in this case. 144 La. 1041, 81 So. 706; 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653; 135 Ala. 205, 33 So. 438, 93 Am. St. Rep. 31; 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516; 115 Ark. 288, 171 S.W. 93, L.R.A. 1916C, 1200; 143 N.C. 176, 55 S.E. 509, 8 L.R.A. (N.S.) 798, 10 Ann. Cas. 375; 133 Minn. 158, 157 N.W. 1085, L.R.A. 1916E, 1151.
B. M. Allen and Black Harris, all of Birmingham, for appellee.
The master was liable for the acts of its servant in this case. 108 Miss. 121, 66 So. 402; 2 Ala. App. 520, 57 So. 52; 169 Ala. 50, 53 So. 794; 167 Ala. 134, 51 So. 951, 140 Am. St. Rep. 21. Stamps' evidence was of the res gestæ, and admissible. 16 Cyc. 1241; Wigmore on Evidence, § 1745, et seq., 20 Ala. 530; 63 Ala. 52, 35 Am. Rep. 4; 66 Ala. 336; 6 Ala. App. 594, 60 So. 499; 167 Ala. 615, 52 So. 530; 189 Ala. 446, 66 So. 613; 147 Ala. 50, 41 So. 727; 37 N.Y. 468; 244 Pa. 559, 91 A. 224, L.R.A. 1915D, 785, Ann. Cas. 1915C, 421. The verdict was not excessive. 12 Ala. App. 474, 67 So. 801. The motion for new trial was properly overruled. 29 Cyc. 886; 98 Ala. 159, 13 So. 65; 198 Ala. 99, 73 So. 416; 12 Ala. App. 642, 68 So. 516; 201 Ala. 545, 78 So. 899.
The foregoing statement of the case will suffice for an understanding of the questions here presented.
Plaintiff, a former employé of the defendant, went to the factory on the regular pay day to receive the wages due her at the time she quit its employ, and insists that she was cursed, assaulted, and otherwise abused by the defendant's superintendent then in charge of the factory, and by Mrs. Della Maxwell, referred to as "floor lady," who made up the pay roll and paid off the employés.
There is no insistence made that the defendant would not be responsible for the assault made by the superintendent; but the argument is advanced, and a charge to this effect was requested, there could be no liability for the assault committed by Mrs. Maxwell, upon the theory that she was not acting within the line and scope of her employment, but from personal motives and malice, citing, among our cases, Wells v. Henderson Land Lbr. Co., 200 Ala. 262, 76 So. 28, L.R.A. 1918A, 115; Palos Coal Coke Co. v. Benson, 145 Ala. 664, 39 So. 727; West. Ry. Co. v. Milligan, 135 Ala. 205, 33 So. 438, 93 Am. St. Rep. 31; Republic Iron Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516; Kirby v. L. N. R. R. Co., 187 Ala. 443, 65 So. 358. As appears in the statement of the case, Mrs. Maxwell was in charge of the packing department; had authority to hire or discharge the girls in the defendant's employ, kept their time and made up the pay rolls, and at the time of the difficulty had fixed the envelopes and pay roll and was ready to pay off; that plaintiff went there for the sole purpose of receiving her pay, and, according to her theory of the case, after a few words had passed following her demand for the money, Mrs. Maxwell assaulted her. Under these circumstances, upon the following authorities from this court, the charge was properly refused. Gassenheimer v. West. Ry. of Ala., 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; Case v. Hulsebush, 122 Ala. 212, 26 So. 155; Jebeles-Colias Conf. Co. v. Booze, 181 Ala. 456, 62 So. 12; Hardeman v. Williams, 169 Ala. 50, 53 So. 794.
It is next most strenuously insisted that the declaration of Stamps, as testified to by witnesses for the plaintiff, was illegal and mere hearsay, and therefore should not have been admitted. Counsel for appellant, however, argue the question upon the theory that the difficulty occurred upstairs, and could not have been seen by Stamps, and he was not a bystander, and therefore his declaration was but a mere statement made by a third party after the difficulty, and in any event but a mere threat as to what witness would do upon the happening of a certain contingency. While the difficulty had its beginning upstairs, yet, according to the theory of the plaintiff, she was running to escape both Mrs. Maxwell and Serio, and as she reached the stairway Serio still threatened that if she did not stop her cries for help he would push her down the steps, and that she ran down the stairs with Serio following her. From the standpoint of the defendant, Serio's intentions were entirely innocent, and he meant no harm to the plaintiff as he followed her down the stairs; but, according to the plaintiff's theory, it was but a continuation of the difficulty, and the insistence is that the jury could infer the declaration of Stamps caused Serio to stop in his pursuit of the plaintiff, and thereby put an end to the continued assault. Upon this theory, therefore, the declaration of Stamps was admissible as a spontaneous utterance on the part of a bystander, tending to illustrate, explain, or characterize to some extent the act of Serio, and was admissible as a part of the res gestæ. Mobile Montgomery Ry. Co. v. Ashcraft, 48 Ala. 15; Dismukes v. State, 83, Ala. 287, 3 So. 671; Johnson v. State, 102 Ala. 1, 16 So. 99; Glass v. State, 147 Ala. 50, 41 So. 727; Hartnett v. McMahan, 168 Mass. 3, 46 N.E. 392; 3 Wig. on Ev. § 1745 et seq.; Ala. City, G. A. Ry. v. Heald, 178 Ala. 636, 59 So. 461.
Much stress is made in argument of counsel for appellant that the verdict was so contrary to the great weight of the evidence as to convince the court that it was palpably and plainly wrong, and should be set aside. The rule which controls the action of this court in questions of this character is well understood, and needs no repetition here. Each case must depend upon its own peculiar facts and circumstances as a careful study of the record impresses the judicial mind, and the mere fact of the superiority in number of witnesses is not to be considered alone as a determining factor. The evidence was in sharp conflict, and has been given most careful consideration. We will enter into no detailed discussion of it here, but suffice it to say, after a most mature consideration of the record, we are unwilling to disturb the judgment of the trial judge, who saw and heard the witnesses, in denying the motion for a new trial upon this ground.
Nor do we think a new trial should be awarded for newly discovered evidence. When the general nature of the affidavit of counsel for defendant is viewed in the light of a previous trial, where the declarations of witness Stamps were admitted in evidence, we are of the opinion that a sufficient showing of due diligence has not been made. L. N. R. R. Co. v. Burke, 198 Ala. 99, 73 So. 416.
The only remaining question relates to the excessiveness of the verdict. It is to be remembered, in passing upon questions of this character, the verdict of the jury is not to be set aside merely because in the opinion of the court the jury gave too much; but the question is whether or not the amount is so excessive as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury. Cent. of Ga. Ry. Co. v. White, 175 Ala. 60, 56 So. 574. We find nothing in this record appealing to the prejudice or passion of the jury, and if the judgment is to be disturbed the ruling must rest solely upon the excessiveness of the amount awarded.
If the plaintiff's theory is to be accepted she was the innocent victim of an unprovoked assault upon her person under the most humiliating circumstances, and there can be no question but the evidence justified the awarding of punitive damages. In such a case the jury is authorized to exercise a wide discretion, and the conclusion has been reached that the verdict should not be disturbed upon this ground.
It results that the judgment of the trial court will be affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.