BRICKELL, C. J.
1. There is no misjoinder of counts in the complaint. Each count is in case, for the recovery of damages or injuries to the person and property of the plaintiff, suffered from a public nuisance created and continued by the defendant on one of the public streets of the city of Montgomery.
2. Whatever may have been the ancient doctrine, it is now settled that a corporation is civilly liable to the same extent and under the same circumstances as a natural person, for its torts, or for the acts and negligence of its servants or agents, while in its employment. The limitation of the principle, as announced in Owsley v. M. & W. P. R. R. Co., 37 Ala. 560, is that as the corporation is incapable of malice, it is not liable civilly or criminally for torts, of which malice is an essential element. It is not necessary to fix the [530]*530liability that the wrongful act, or the negligence, from which the injury proceeds, should have been committed while the corporation was in the exercise of the powers conferred by its charter. It may have been committed while the corporation, or its servants or agents acting under its authority, were exceeding corporate power, or engaged in business or transactions wholly foreign to its nature. — P. M. & B. R. R. Co. v. Quigley, 21 How. 202; 2 Wait’s Actions and Defenses, 337; Greene’s Brice’s Ultra Vires, 240. It results, the demurrers to the complaint were properly overruled.
3. It was not material whether the appellant had or had not used due care in the selection of a watchman to give warning to persons approaching the ditch to avoid it, and the general character or reputation of the watchman employed was not involved. The liability of the defendant depended wholly on the fact whether it had caused and continued the nuisance, and the plaintiff had without fault on his part suffered injury from it. The concurrence of these facts rendered the defendant liable, whatever may have been the reputation, (or however well deserved,) of the watchman.
Let the judgment be affirmed.
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