Plaintiff sued to recover for damage to its gas main allegedly caused under such circumstances as to render the defendant liable. On a stipulation of facts, judgment was rendered for the plaintiff. Defendant appealed to the Court of Appeals where the judgment for plaintiff was affirmed. Defendant has applied for certiorari to review the judgment of the Court of Appeals.
The record appears to indicate that the defendant is a natural person sued in both his individual capacity and the name under which he was doing business. At various places in the stipulation of facts the plural is used, but we have considered the defendant as being only one person and as being a natural person, not a corporation.
The stipulation of facts, in pertinent part, recites as follows:
* * * * * *
The cause of action arose January 7, 1955. More than one year later, on January 11, 1956, the action was commenced. Defendant has pleaded the statute of limitations of one year. Code 1940, Tit. 7, § 26.
The plaintiff appears to recognize that its claim is barred by the one-year statute if the allegation and proof show trespass on the case as distinguished from trespass. In brief, "Plaintiff reiterates that the stiplation of facts affords conclusive proof of a trespass by defendants."
In order to avoid the bar of the statute plaintiff must allege and prove trespass. It is conceded by both parties that the complaint alleges trespass. The question is: Did the proof show trespass?
The distinction between the action of trespass and the action of trespass on the case, with respect to the liability of a master for the act of his servant, has been stated by this court as follows:
In the case at bar, the proof, as we view it, is that the damnifying act was done by "An employee of defendants" and that "He was acting in line and scope of his employment."
Like the Court of Appeals, we have considered the complaint as charging trespass to personalty. This court has consistently held that a plaintiff cannot recover from a corporate master in an action of trespass for a wrong done by the servant where proof of corporate authorization, ratification, or participation by the master is lacking. Decatur Petroleum Haulers, Inc. v. Germany, 268 Ala. 211, 105 So.2d 852. Trognitz v. Fry, supra, indicates that the same rule which applies to a corporation as master applies also to a natural person as master. We know of no reason why a different rule should apply. In City Delivery Company v. Henry, 139 Ala. 161, 34 So. 389, 390, in speaking of counts 2 and 4, which alleged in pertinent part that "the defendant, through its agent * * * willfully, or intentionally caused an ice wagon to run against plaintiff * * *," the court said: "The injury ascribed to the defendant is direct and immediate from force applied by it, and not merely from force applied by its servant within the scope of [its] employment."
In the case at bar, plaintiff must prove an injury which is direct and immediate from force applied by defendant, "and not merely from force applied by" the servant of defendant acting within the scope of his employment. We do not think plaintiff has proved that defendant authorized, participated in, or ratified the act of the employee which brought the drag line bucket into contact with plaintiff's gas main. The
In the face of the stipulation that an employee of defendant was operating the drag line, we do not think the statement that "* * * defendants were using a drag line * * *," can be taken as proof that defendant was personally operating or directing the operation of the machine.
The burden of proof was on the plaintiff and we are of opinion that plaintiff has not supported the burden. Accordingly, the judgment of the Court of Appeals must be reversed, and the cause remanded to that court.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN, and MERRILL, JJ., concur.