Brittain v. Vickers

96 So. 438, 209 Ala. 391, 1923 Ala. LEXIS 492

• Court: Supreme Court of Alabama
• Decided: May 3, 1923
• Docket: 7 Div. 317.
• Status: Published

Opinion

GARDNER, J.

Appellee recovered a judgment against the appellants for damages as the result of a forcible search of her person by one Ballard in a store in Ashland, Ala., which, was being operated by defendants.

it appears without dispute that the store was the sole property of W. H. Brittain, who resided in Roanoke, and that his son. Maddox Brittain, wds in complete control, operating the store for his father; the former testifying that his son had full charge of the business, and that he himself had very little to do with its operation, except to furnish the capital. There can be little question that under the evidence in this ease Maddox Brittain was the alter ego, the vice principal of his father in the operation of this store. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; A. G. S. R. Co. v. Vail, 142 Ala. 134, 38 South. 124, 110 Am. St. Rep. 23; L. & N. R. R. Co. v. Lile, 154 Ala. 556, 45 South. 699. One E. B. Ballard was engaged to conduct a special sale in the store at Ashland, and plaintiff was engaged to assist as a saleslady in the store. On the afternoon of January 29, 1921, Ballard approached the plaintiff, and requested that she come to the rear of the store, and went with her into the office. He accused her of slipping money into her pocket; and plaintiff testified that he held one of her hands while he searched her pocket, holding her right hand tight propped against the counter.

The evidence for the plaintiff tends to show that, immediately'preceding her search by Ballard, the latter and Maddox Brittain, who, as previously shown, is a party to this suit,_ and the alter ego of W. H. Brittain in the operation of this store, were seen in consultation.

We are of the opinion that the testimony of Nabors as to a conversation with Maddox Brittain the morning of the same-day on which the search was made in regard to his suspicion that this plaintiff had been seen placing money in her pocket which she had received from sales and failed to account for was competent in connection with all the facts and circumstances to'be considered by the jury in the light of plaintiff’s theory that the search w.as made with Maddox Brittain’s full acquiescence, knowledge, and consent, and therefore his participation therein. So, likewise, the testimony as to the declarations made by Maddox Brittain as testified to by Mrs. Z. T. Wood.

The court committed reversible error, however, in permitting the plaintiff,' over defendants’ objection, to testify as to a conversation with Ballard some time after the search, which conversation was clearly no part of the res gestee. The plaintiff testified that she came back to see Ballard the second time, and asked him who saw her putting the money in her pocket, to which he replied, “I saw you put- it there.” The plaintiff was-further permitted to show that she went back to the store with her daughter, and testified concerning the conversation between her daughter and Ballard, which was, in effect, an admission on Ballard’s part that he had searched her mother (plaintiff) on mere suspicion. All these conversations, being no part of the res gestae, constituted but the declaration of the agent in regard to a past transaction, and were therefore inadmissible as against these defendants under the authority of Phœnix City v. Taylor, 196 Ala. 665, 72 South. 264; A. G. S. R. Co. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403; Danner Land & Lbr. Co. v. Stonewall Ins. Co., 77 Ala. 184. We are of the opinion this evidence was probably of xn-ejudicial effect, and its admission must work a reversal of the cause.

It is argued that the affirmative charge was due the defendant upon the theory that Ballard was a fellow servant of plaintiff, and therefore the defendant would not be liable in this common-law action. Mobile & Montgomery Ry. v. Smith. 59 Ala. 245. This question, however, need not be determined, as the exact relationship existing between Ballard and defendant is not clearly made to appear. It is clear, however, as previously stated, that Maddox Brittain was the alter ego of W. H. Brittain in the operation of this store, and there was evidence from which the jury could infer his connivance, with Ballard in the search made, and therefore sufficient proof upon which he could be held responsible individually, and his father, W. H. Brittain, under the evidence, also held accountable for the conduct of Maddox Brittain. Upon this theory therefore it is readily seen the affirmative charge was properly refused. Southern Bell Tel. Co. v. Francis, supra; L. & N. R. R. Co. v. Lile, supra; A. G. S. R. Co. v. Vail, supra.

We are of the opinion that counts 3, 4, and 5, upon which the cause was tried, contained sufficient statement of facts, readily .understood by the opposing parties, to establish the cause of action. Weller & Co. v. Camp. 169 Ala. 275, 52 South. 929, 28 L. R. A. (N. S.) 1106. Nor do we consider it was incumbent upon plaintiff to allege that W. H. and Maddox Brittain were partners, as this was not a matter essential to recovery, and was peculiarly within the knowledge of the defendants.

There is a clerical error in the fourth count-in the use of the word “defendant” when, very clearly, as stated by counsel in brief, the name of the agent was intended. It would also appear from the undisputed proof that Ballard was employed by W. H. Brittain. To avoid any question of variance upon another trial the plaintiff may amend the complaint as to so disclose the facts established by this record, and also make the amendment as to the fourth count above noted.

For the error indicated, let the judgment be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, O. J., and SAYRE and MILLER, JJ., concur.