The Court of Appeals held that a defendant is entitled to the general charge when the complaint charged that the defendant assaulted and beat plaintiff, and the proof showed that one Stone committed the assault and battery at the instigation of the defendant but not in defendant's presence. The opinion states:
The Court of Appeals relies on the cases of Bacon v. Hooker, 173 Mass. 554, 54 N.E. 253, and Vansant v. Kowalewski, 5 Boyce 92, 28 Del. 92, 90 A. 421. Just prior to the quoted sentence from the Bacon case, the Massachusetts court said:
But here, there was positive evidence by Stone, the assaulter, that he was hired to do the illegal act by the defendant and that defendant pointed out plaintiff to him and after he had beat plaintiff, defendant finished paying him off. The proof in the Bacon case and the instant case was vastly different because here the evidence was that defendant had authorized and paid for the assault to be made.
The quoted sentence from the Vansant case is taken from the court's charge to the jury in Superior Court and the question of the oral charge was not presented on the motion for a new trial, which was concerned with matters of evidence presented at the trial and newly discovered.
We think a fair statement of the correct principle is found in Klugman v. Sanitary Laundry Co., 141 Ill.App. 422:
But it is not necessary to consult other jurisdictions for applicable cases. In Trognitz v. Fry, 215 Ala. 609, 112 So. 156, 157, this court said:
Certainly there was evidence in the instant case that defendant was directing the trespass and that he ratified it. The defendant was the principal, and the complaint charging him with the trespass was supported by evidence that he was acting by and through Stone, who actually committed the assault.
The opinion of the Court of Appeals states:
We cannot agree with the last sentence. True, the count sounds in trespass, but the proof does not disclose an action on the case.
The proof (or evidence), as stated by the Court of Appeals, was that "the defendant had, shortly before the assault, agreed to pay him ten dollars if he would beat up plaintiff, and paid him five dollars before the assault, and five dollars afterwards." This was evidence of authorization, direction and ratification of the defendant just as much so as if he had been present. Here, the defendant "directly causes or encourages the doing of the wrong, or ratifies it with knowledge" and both the allegation and the proof present an action in trespass, not in case. Trognitz v. Fry, 215 Ala. 609, 112 So. 156, 157.
We consider it settled in this State that a count alleging trespass by a defendant, without mentioning an agent (Birmingham Belt R. Co. v. Gerganous, 142 Ala. 238, 37 So. 929), or by a defendant acting by and through an agent (Edwards v. Russell, 222 Ala. 484, 133 So. 3; Trognitz v. Fry, supra; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389), is in trespass.
In Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 19 So. 1, 3, 31 L.R.A. 193, this court said:
In City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, 390, cited by the Court of Appeals, this court, in pointing out that Counts 2 and 4 of the complaint were in trespass, said: "It is in effect to say that the vehicle was run against the plaintiff by direction of the defendant." In the instant case, it is clear that the assault on plaintiff was "by direction of the defendant."
We think further discussion is unnecessary in view of the extended annotation on the subject of the necessity of pleading that the tort was committed by servant, in an action against the master, in 4 A.L.R. 2d 292, with a discussion on variance, p. 302, and a discussion of Alabama cases, pp. 307-310. The section on Alabama cases is not entirely accurate, viz., the case of City Delivery Co. v. Henry, supra, was not overruled on another ground in Louisville & Nashville R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103. The court divided four to three on the question, but a majority followed the holding in the Henry case.
We have found no case in this jurisdiction which holds or intimates that the principal, whether corporate or not, would not be liable in trespass for an authorized or ratified assault and battery. Accordingly, we hold that a complaint charging defendant with trespass is supported by evidence that the trespass was committed by another under the direction or ratification of defendant, whether or not the defendant was physically present at the time the trespass occurred.
We note that the provisions of Act No. 624, Acts of Alabama 1957, listed as Tit. 7, § 217(1), in the 1957 Supplement to the Code of 1940, are not applicable, the instant case having been tried prior to the passage of the Act.
It follows that the judgment of the Court of Appeals is reversed and the cause is remanded to that court.
Reversed and remanded.
LAWSON, SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur.
LIVINGSTON, C. J., and COLEMAN, J., dissent.