Elmore v. Fields

45 So. 66, 153 Ala. 345, 1907 Ala. LEXIS 151

• Court: Supreme Court of Alabama
• Decided: November 28, 1907
• Status: Published

Opinion

ANDERSON, J.

— In an action of trespass quare clausum fregit, the premises need not be described by metes and bounds, or by the government survey; but it ' should be sufficiently certain as to the locus in quo to ' put the defendant on notice of same, and the description should not be misleading. — Bessemer Land Co. v. Jenkins, 111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26; O’Neal v. Simonton, 109 Ala. 167, 19 South. 412; Pike v. Elliott, 36 Ala. 69; 2 Chitty on Pl. 609; 21 Am. & Eng. Ency. of Pl. & Pr. 818. The trial court erred in sustaining the demurrer to the second count of the complaint.

The state does not undertake to guarantee to any person the fidelity of any of its officers or agents, since that would involve it in all its operations in endless embarrassment, difficulties, and losses, which would be subversive of public interest. Nor can it be held responsible for the torts of its officers or agents. “Although the individuals who have the administration of public, .affairs may commit very gross outrages, it is not congruous with the ideas of order and duty that the state, the august sovereign body whose servants they are, from which proceed all civil laws, and to which we owe unstinted respect and honor, should be held capable of doing-wrongs for which she should be made answerabie as for tortious injuries, in her own courts to her own children and subjects.” It must stand to reason that no ’ person can commit a wrong upon the property or person of another, and escape liability, upon the theory that he was acting for and in the name of the government which is immune from suit at the instance of one of her subjects.- — State v. Hill, 54 Ala. 67; Erwin v. Davenport, 56 Tenn. 44; Bourn v. Hart, 93 Cal. 321, 28 Pac. 951, 15 L. R. A. 431, 27 Am. St. Rep. 203; U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171; Tindall v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137; Gibbons v. U. S., 8 Wall. (U. S.) 269, 19 L. Ed. 453. The second plea sets up, in substance, that the defendant was acting for and in behalf of the state, and in no sense showed that the state was being sued, or that he had authority to commit a tort in the name of and behalf of the state, and in no wise set up a legal defense to the action. The sixth plea is substantially the same as the second, except it sets up ownership and possession of the state to certain land in the vicinity of that set out in the complaint, but in no way controverts the plaintiff’s title or possession to said land. The trial court erred in overruling plaintiff’s demurrers to pleas 2 and 6.

The case of Comer v. Bankhead, 70 Ala. 493, has no bearing on the case at bar, and does not conflict with the present holding or the authorities cited in this opinion.' There ,a bill was filed to enforce a contract, made under legislative authority for the state and in her name, and the court properluy held it was. the state’s and not Bankhead’s contract. Here, we have an agent charged with a tort, setting up by plea that he was acting for and in behalf of the state, and the authorities hold that he has no authority to act for the stae in the commission of a tort. If she is not responsible for the torts of her servants, and they have no authority to bind her for their torts, then a mere averment that they were committed in her behalf does not render the suit one against the state. The state can do no wrong. Neither can her servants do a wrong for it or in its name, so as to make it a party to a suit against them.

The judgment of the circuit court is reversed, and the cause is remanded.

Beversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.-