Opinion
1 Div. 223.
April 7, 1936.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Action by J. O. Partain against the Washington National Insurance Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Counts 1 and 2 of the complaint are the common counts on account and account stated.
Counts 3 and 4 are as follows:
"3. Plaintiff claims of the defendant the sum of eight hundred seventy-three and 21/100 Dollars ($873.21) damages, for that from on or about February 20, 1933, and during each and every week thereafter until on or about February 5, 1934, for the purpose of requiring the plaintiff to pay the defendant said sum of money, the defendant's manager of the Mobile Office, whose name is one Mr. Sherlock, well knowing that plaintiff for said respective weekly business had not collected the amount claimed for each and every respective week during the said time beginning with February 20, 1933 to February 5, 1934, as an agent for said defendant company but to induce plaintiff to pay the said defendant the said excess of $873.21¢ for said period, made threats to plaintiff that unless plaintiff did so, the defendant company would call on the plaintiff's bondsmen and report a shortage, which would have caused plaintiff much humiliation and embarrassment although he was not short, but on said defendant's said manager's statement above set out and his further statement 'that plaintiff would get the excess paid to defendant, back as a refund,' plaintiff paid from week to week during said period he was employed as an agent for the defendant out of their Mobile, Alabama, office, said excess over and above what he actually collected from February 20, 1933, to February 5, 1934, the sum of $873.21¢, which has never been refunded to him by defendant, and is still due and unpaid, together with the interest thereon.
"4. Plaintiff claims of defendant the sum of $873.21¢ damages for that on about February 20, 1933, through each and every week thereafter, until February 5, 1934, while plaintiff was an agent of defendant working out of the Mobile, Alabama, office, defendant's agent, servant or employee, one Mr. Sherlock, then and there acting within the line and scope of his employment as manager of said Mobile office, in order to induce plaintiff to pay an excess over said period of time, over and above the total collections plaintiff had collected as such agent for defendant, which said manager, Mr. Sherlock, had personal knowledge of and was personally acquainted with same, and knew plaintiff had not collected the sum or sums for the respective weeks that defendant charged him with, but required plaintiff to pay defendant an excess for said period of time over and above what he had collected for defendant, the said sum of $873.21¢, and promise plaintiff that said excess payments would be refunded to plaintiff by defendant, but plaintiff was induced to pay said weekly payments in excess of what he had actually collected.
"That said representations were false and then known to be or ought to have been known by defendant to be false, and that the defendant has not repaid plaintiff said money, and the same remains due and unpaid, together with the interest thereon."
Plaintiff testified that he had made a summary from the books of defendant showing the items collected by him and the items paid to defendant. Upon introduction of the summary defendant objected and the objection was sustained Thereafter the trial court inquired of the witness whether the memoranda was an itemized statement from the books, and upon the witness answering in the affirmative, stated, in effect, that the jury might use the memoranda, not as evidence, but merely as a memoranda.
J. E. Meredith, of Mobile, and Alex C. Birch, of Montgomery, for appellant.
Counts 3 and 4 are indefinite, uncertain, and wholly insufficient. Posey v. Hair, 12 Ala. 567; Weller Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A.(N.S.) 1106; Mutual Life Ins. Co. v. Witte, 190 Ala. 327, 67 So. 263; Code 1923, § 9457; Kennedy v. McDiarmid, 157 Ala. 496, 47 So. 792; Moore v. Smith, 19 Ala. 774; Gould, Pleading, 2, 3, 192, 361; Ala. F. I. Co. v. Bush, 204 Ala. 658, 86 So. 541. Where one is sought to be charged with the act of an agent, it is not sufficient merely to charge that an agent did the act, but it must be alleged that the agent was duly authorized to act for the principal. Childress v. Miller, 4 Ala. 447; Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250; National L. A. I. Co. v. Moore, 216 Ala. 554, 114 So. 45; May v. Kelly, 27 Ala. 497. The account was not verified and attached to the complaint. The memoranda of account was not admissible. Armour Fert. Works v. Kinney, 216 Ala. 547, 114 So. 41; Oden-Elliott Lumber Co. v. Daniel-Gaddis Lumber Co., 210 Ala. 582, 98 So. 730. The jury disregarded the court's instructions and considered the account cards as evidence. For this reason the motion for new trial should have been granted. Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Wolf v. Doe ex dem. Delage, 150 Ala. 445, 43 So. 856; Meadows v. State, 182 Ala. 51, 62 So. 737, Ann. Cas. 1915D, 663; Fleming Hines v. Louisville N. R. Co., 148 Ala. 527, 41 So. 683; Marcus v. State, 89 Ala. 23, 8 So. 155. One who deals with an agent, knowing he has limited powers and that his act transcends his authority, cannot hold the principal. 21 R.C.L. 909; Slocum v. N.Y. L. I. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas. 1914D, 1029; Wynn v. Hoffman, 203 Ala. 72, 82 So. 32; Cushman v. Amend, 176 App. Div. 224, 163 N.Y.S. 42.
J. G. Bowen, of Mobile, for appellee.
General grounds of demurrer will not be considered. U.S. H. A. I. Co. v. Goin, 197 Ala. 584, 73 So. 117; Owsley v. Montgomery W. P. R. Co., 37 Ala. 560; Central of Ga. R. Co. v. Joseph, 125 Ala. 213, 28 So. 35. The cards offered by plaintiff were not allowed as evidence, and the ruling of the court was without error. Heard v. Burton-Boyd Mercantile Co., 202 Ala. 218, 80 So. 40.
The complaint in this case consisted of four counts. No objection by demurrer or otherwise was interposed as to counts 1 and 2. The court overruled demurrers as to counts 3 and 4 and upon this action of the court the first three assignments of error are predicated.
There was no error in overruling the demurrer to counts 3 and 4 of the complaint. The facts presented in these counts were in compliance with section 9457 of the Code 1923, which provides it sufficient if the facts are so presented that a material issue in law or fact can be taken by the adverse party thereon. In other words, the counts of the complaint in question were sufficient to inform the court and the defendant as to the nature and character of the action. Moreover, there was a general verdict in favor of plaintiff upon the complaint as a whole.
Assignment of error 4 is not sustained by the record. The matter in question was well within the discretion of the court, and it clearly appears that the index cards were not admitted in evidence, as complained of in said assignment 4. In this connection the court instructed the jury as to said index cards, among other things as follows:
"Now, during the course of the trial when these cards were offered, the court sustained objection to these cards. Later, for the convenience of the jury, and that alone, the court permitted the cards to be sent to the jury as an index to the various items claimed by the plaintiff and instructed the jury that these cards were not competent evidence and should in no sense be regarded as evidence. The cards were given to you so that you could take each item where the collection book is referred to and see whether or not that item was there or not there or whatever other information you might get from the books which were in evidence. In other words, these cards are nothing in the world but a key or index for your convenience. They cannot be evidence in the case. * * * I don't want you to use these cards as evidence when I strictly enjoined you from considering them as evidence. * * * You can use these cards to check from page to page only and they are not evidence and prove nothing and they have no probative value. These cards have nothing about them that is of probative value and they were merely for your convenience to save time."
It is easy to ascertain here from this record that the trial of facts in this case in the court below was not without difficulty, and that the trial judge realized this and, as stated, exercised a discretion by permitting the jury the use of the cards in order to enable them to locate in the several large books in evidence the specific items, the basis of this action.
The action of the court in connection with the foregoing in no manner necessitated, or warranted, a discharge of the jury, etc., as insisted in assignment of errors 5 and 6.
Under the evidence in this case, the defendant was not entitled to a directed verdict, and therefore there was no error in the refusal of the affirmative charge to the defendant as insisted in assignment of error 7. There was evidence in the case on the trial below which tended to sustain the material averments of the complaint, including the question that the manager of the defendant company, a Mr. Sherlock, committed the acts complained of while acting within the line and scope of his duties as manager. In a concise, fair, and plainly stated oral charge the trial court submitted this case to the jury, after covering every phase thereof for their determination. We are of the opinion the evidence adduced was ample to support the verdict of the jury and the judgment rendered in accordance therewith, and also to justify the trial judge in overruling defendant's motion for a new trial.
The judgment of the lower court will stand affirmed.
Affirmed.