ing care by master using dangerous instrumentality held inapplicable to injury by servant using own pistol. The rule that one who employs highly danhis business is held, as to third persons to a gerous instrumentality in the transaction of degree of care proportionate to the dangers, did not apply to render master liable for servant's discharge of his own pistol, which he was using because through his neglect one furnished by master was not in working order. legal limitations, so long as the county is (6. Master and servant 304-Rule concernnot in the actual need of same for county purposes. It would be quite a narrow and unbusinesslike interpretation to hold that the lawmakers contemplated that county property should lie idle and unremunerative notwithstanding the commissioners' court did not deem it advisable to sell same. In other words, it could not have been within the contemplation of the lawmakers that such property must be sacrificed at a sale or remain unproductive and burdensome on the hands of the county, and that the governing board could not rent or lease the same until they deemed conditions such as to warrant an, advantageous sale thereof. The decree of the circuit court is affirmed. Affirmed. SOMERVILLE, THOMAS, and MILLER, JJ., concur. AMERICAN RY. EXPRESS CO. v. TAIT. (1 Div. 295.) (Supreme Court of Alabama. Jan. 31, 1924. Rehearing Denied May 29, 1924.) I, Master and servant 329-Unnecessary to allege negligent act of servant was in interest of master. It is unnecessary to allege that the negligent act of the servant complained of was in the interest of the master or was in the pros ecution of his business. 2. Railroads 274(2)-White man in colored waiting room held not trespasser. A white man, unfamiliar with railroad station, was not a trespasser by reason of the fact that he was in the colored waiting room. 3. Master and servant 304-Trespass by person injured by employee held immaterial. That plaintiff had ridden as a trespasser on railroad prior to his injury by an express messenger handling a pistol in waiting room of station, for which plaintiff brought suit against express company, held immaterial. 4. Master and servant 302 (2) - Express messenger handling pistol causing injury held not within scope of employment. Where an express messenger, in demonstrating to a friend a pistol he was required to carry, shot a passenger while the train was standing at the station, held that the messenger was acting without the line and scope of his authority, and express company was not liable. 5. Weapons 18(1) instrumentalities." - Firearms "dangerous Firearms are "dangerous instrumentalities" within the principle that one who employs highly dangerous agencies in the transaction of his business is bound to exercise, as to third persons, a degree of care proportionate to the danger. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Dangerous Instrumentality.] Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge. Action for damages by Harry E. Tait against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Counts 5 and 7 of the complaint are as follows: (5) The plaintiff claims of the defendant twenty-five thousand ($25,000) dollars, damages for that heretofore, on to wit, November 4, 1921, W. D. Odom was in the employ of the defendant as an express messenger and was in charge of a car then being used by the defendant in carrying express matter, which said car was being transported by the Louisville & Nashville Railroad Company on that day. The plaintiff further avers that the said W. D. Odom was required by defendant to travel armed for the protection of express matter while wit, the said 4th day of November, 1921, while he was in charge of said car, and that on, to the said W. D. Odom was in charge of the said car for and on behalf of the defendant he had in his possesion a loaded pistol for the purpose of protecting the express matter, and that the said agent of the defendant, while in said charge of said car and in the possession of the said pistol, while acting within the line and course of his employment was negligent in and the proximate result thereof the plaintiff, while about the custody of the said pistol, and as station of the Louisville & Nashville Railroad he was in a waiting room of the passenger Company, at Bay Minette, Ala., was shot in the left knee, and as the proximate result of said injury the plaintiff has been confined to bed for that time up to and including the present time, and has suffered and still suffers great physical pain and mental anguish, and will continue in the future to suffer physical pain and mental anguish, will incur in the future much expense for medicine and medical treatment, has been unable to work since said time, and will be unable to work for a long period hereafter, and his earning power is permanently reduced, and he is permanently disabled and disfigured." "(7) Plaintiff claims of the defendant the further sum of twenty-five thousand dollars damages, for that heretofore on, to wit. November 4, 1921, while plaintiff was in a waiting room of the passenger station of the Louisville & Nashville Railroad Company, at Bay Minette, Ala., in this county, he was wounded in the left knee by a bullet discharged from a deadly weapon, to wit, a pistol, in the hands of one W. D. Odom, a servant or agent of the (100 So.) Cas. 1149. The demurrer was properly overruled. It is next strenuously insisted that under the evidence in this case the defendant was entitled to the affirmative charge, and this we consider the question of prime importance upon this appeal. A very brief reference to the testimony is necessary. defendant American Railway Express Company, then in charge as express messenger of a railway express car. And plaintiff says that by reason of said wound and as a proximate consequence thereof, he was caused to be sick for a long time and to be confined to bed; that he lost and will lose much time from his employment; that he suffered and still suffers great and severe pain and mental anguish; that his knee was caused to become permanently stiff [2, 3] The accident occurred on November and useless to him; and that he was per- 4, 1921, while the plaintiff was standing in manently disfigured and disabled and rendered the colored waiting room of the passenger less able to work and earn money, all to his depot at Bay Minette. The testimony tends damage as aforesaid. And plaintiff alleges that to show that he was in the depot at that parhis said injury and damages were approxi- ticular time to meet a friend named Harris, mately caused by the negligence of the defend- and that he also intended, upon seeing Har ant, acting through its said servant or agent, in this, that the defendant required its ex- ris, to board the train for Mobile, having in press messengers and said Odom to go armed, his possession cash to pay his fare. Plainor have in said car readily accessible a deadly tiff was a white man, but unfamiliar with weapon, to wit, a pistol, for the defense of the the station, and we do not consider that the property intrusted to their care, and plaintiff | fact he was in the colored waiting room has says that it thereupon became and was the any material bearing upon the case. If the duty of defendant, by its messengers in pos- evidence was to be believed by the jury, he session of such deadly weapons, to carefully was not a trespasser as contended by counhandle the same, so as not to inflict hurt up-sel for appellant. Southern Ry. Co. v. Bates, on others, but that the said Odom, who in pur- 194 Ala. 78, 69 South. 131, L. R. A. 1916A, suance of defendant's said requirement was armed or had said pistol readily accessible in said car, and who was then and there in charge of said car as aforesaid, so negligently handled the same while acting within the line and scope of his authority as that said pistol exploded or was discharged and injured plaintiff as afore said." 510; Widener v. A. G. S. R. R. Co., 194 Ala. 115, 69 South. 558. Nor do we see that the fact plaintiff had ridden as a trespasser on the defendant's railroad from Mobile to Bay Minette affects the legal aspect of his case in the light of the testimony above referred to, showing that, the wound was received Webb & Shepard, of Mobile, and Stone & while he was in the waiting room of the GARDNER, J. Plaintiff in this action received a wound in the knee as a result of the accidental discharge of a pistol while in the hands of one Odom, an express messenger of the appellant, American Railway Express Company, and from the judgment recovered in his favor the defendant has prosecuted this appeal. The cause was tried upon issue joined upon counts 5 and 7, and the sufficiency of these counts as against the demurrer interposed is the first question presented for consideration. . [1] It is well established by the decisions of this court that in cases of this character it is unnecessary to allege that the negligent act complained of was in the interest of the master, or was in the prosecution of the business of the master, as the act may be within the scope of the agent's or servant's authority, and yet not be in the interest of the master or in the prosecution of the master's business. This was expressly held in the comparatively recent case of Jones v. Strickland, 201 Ala. 138, 77 South. 562, which contains citation of numerous authorities. See, also, Southern Ry. Co. v. Wildman, 119 Ala. 565, 24 South. 764; Gassenheimer v. Western Ry. Co., 175 Ala. 319, 57 South. 718, 40 L. R. A. (N S.) 998; Miller-Brent Lbr. Co. v. Stewart, 166 Ala. 657, 51 South. 943, 21 Ann. depot, and that he was there for the purpose of meeting a friend, and also as a prospective passenger. The evidence further tends to show that the defendant required express messengers on important runs to be armed, and the rules disclose that these messengers were furnished with a pistol and ammunition to be used in defense of themselves and the property in their care should occasion demand. The messengers were required to keep their firearms in good working condition under penalty of dismissal; no excuse being accepted for failure to keep the firearms in condition and ready for instant use. W. D. Odom was the express messenger on this train, and had in his possession an Iver. Johnson .38 pistol, furnished by the defendant company, and also a Smith & Wesson hammerless pistol which was his own or his mother's. There was evidence tending to show that the Iver-Johnson pistol furnished by the company had gotten wet, and was not in good working order, and that he had not had time to clean it, and for this reason had taken his own pistol, the Smith & Wesson, on this trip. While the train was standing at the station at Bay Minette on the day of the accident, and after Odom's duties as express messenger had been discharged, one Stuart, a clerk at the depot, while in the express car, noticed the two pistols on the rack where they were usually kept, and asked Odom what he was "doing with so much ar tillery." Stuart's testimony is to the effect | ble, without any regard to the motive of the that Odom in response to his request took servant." the pistol from the rack and was showing him how it worked when it was accidentally in the following authorities: Euting v. C. A discussion of this question may be found discharged. Odom's testimony does not materially differ from that of Stuart's, except in one particular, wherein Odom states that Stuart first took the gun from the rack, and that he (Odom) then took it from Stuart's hands, to show him how it worked. The bullet seems to have gone through the side of the express car, striking the plaintiff in the knee, inflicting a very serious wound as the result of which-according to plaintiff's evi dence he has lost the use of that limb. [4] We are of the opinion that the agent in thus demonstrating the pistol to his friend had stepped aside from the master's business, and was acting without the line and scope of his authority, and that, so far as this theory of plaintiff's case is concerned, the defendant was entitled to the affirmative charge under the following, among other, authorities: Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 South. 328, L. R. A. 1915F, 516; Barker v. Milk Products Co., 205 Ala. 470, 88 South. 588; Wells v. Henderson Land & Lbr. Co., 200 Ala. 262, 76 South. 28, L. R. A. 1918A, 115; Goodloe v. Memphis, etc., R. R. Co., 107 Ala. 233, 18 South. 166, 29 L. R. A. 729, 54 Am. St. Rep. 67; Am. Ry. Ex. Co. v. Wright, 128 Miss. 593, 91 South. 342, 23 A. L. R. 127; Medlin Mill Co. v. Boutwell, 104 Tex. 87, 133 S. W. 1042, 34 L. R. A. (N. S.) 109; Guille v. Campbell, 200 Pa. 119, 49 Atl. 938, 55 L. R. A. 111, 86 Am. St. Rep. 705; Davis v. Green, 260 U. S. 349, 43 Sup. Ct. 123, 67 L. Ed. 299. & N. W. R. R. Co., 116 Wis. 13, 92 N. W. 358, 60 L. R. A. 158, 96 Am. St. Rep. 936; Alsever v. Minn. & St. L. R. R. Co., 115 Iowa, 338, 88 N. W. 841, 56 L. R. A. 748; Sullivan v. Creed, 2 British R. C. 139; Pittsburg, etc., R. R. Co. v. Shields, 47 Ohio St. 387, 24 N. E. 658, 8 L. R. A. 464, 21 Am. St. Rep. 840. [5] Firearms are classed as dangerous in strumentalities within the influence of this principle, and many interesting cases may be found in the notes to section 782 et seq., 1 Thompson on Negligence, and 20 R. C. L. 52. The [6] All of the authorities, however, to which our attention has been directed, gave application to this principle only in those cases where the master had furnished the dangerous instrumentality. Here the master had furnished the agent with an Iver-Johnson pistol and ammunition for its use. rules of the company required that he keep the pistol in good condition, and that the firearms so furnished should be left at the office of the company at the end of the route, and forbid the use of any ammunition other than that furnished by the express company. The rules also contain requirements to prevent the accidental discharge of firearms, among them, to the effect that if Colt revolvers are furnished, the employé must leave an empty chamber under the handle, likewise with a Smith & Wesson revolver, the cylinder of which must remain stationary when the hammer is down; but as to an Iver-Johnson But it is insisted for the appellee that un-revolver (such as was furnished the agent der the evidence a jury case was presented in the instant case) it is stated that it may upon the principle that one who employs be used with safety loaded to full capacity. highly dangerous agencies in the transaction There are also provisions for target practice of his business "stands under the obligation under certain circumstances, and necessary of exercising, to the end that third persons appliances for cleaning firearms. shall not be injured through those agencies, a degree of care proportionate to the danger of such injury." 1 Thompson on Neg. § 523. The following quotation from this same authority well illustrates the principle: In the instant case the pistol discharged was not the one furnished by the company, and, having furnished the agent with a pistol and ammunition, there is nothing in this record indicating any reason for the company to anticipate the need by the agent of any other weapon. If the pistol furnished by the company was not in good working condition, it was the result of the neglect of the agent, and a violation of his duty—it merely needing the attention which the rules required be given by the agent. "If a person employing such an agency commits the custody of it to his servant, he thereby commits to the servant the obligation to discharge his own duty of caring for it so that it will not injure third persons. If, while so charged with this duty, the servant negligently abandons the custody of it, so that a third person is injured in consequence of this neg- We do not think the case of Ga. Pac. Ry. ligence, the master will be liable; and it will v. Propst, 83 Ala. 518, 3 South. 764, cited by make no difference at all with his liability, counsel for appellee, tends to a contrary conwhether, in so abandoning the duty, the serv-clusion. There it was held the jury was auant did so for the purpose of effecting some thorized to infer that the conductor who had purpose of his own, or in furtherance of the charge of the train possessed implied authormaster has committed to the servant the dis- ity to engage plaintiff as a brakeman, an charge of a duty which the law has imposed emergency existing to that end. Here the upon the master for the safety of third per- defendant furnished the agent with a proper sons, and the servant has abandoned that duty, instrumentality, of its own selection. That business of his master. In either case the (100 So.) of in such cases is readily seen to be an important factor, and is also indicated by the rules of the company. It clearly could not be said that such an emergency had been shown as to be reasonably anticipated by the company from the mere fact that the agent had failed to properly clean the instrument furnished by the company. We are therefore not persuaded that the principle contended for by the appellee concerning the custody of a dangerous instrumentality furnished by the master should be further extented so as to embrace such a case as that here involved, where the instrumentality was that of the agent himself, as to the use of which the master was without notice or knowledge, and any necessity for which was not to be reasonably anticipated. We have therefore reached the conclusion that the plaintiff has failed to make out a case for submission to the jury, and that the affirmative charge should have been given. Let the judgment be reversed, and the cause remanded. Reversed and remanded. Ex parte TAYLOR. (7 Div. 481.) (Supreme Court of Alabama. May 15, 1924.) Certiorari 40-Petition not filed within 15 days too late. Petition for certiorari to review judgment of Court of Appeals, not filed within 15 days, comes too late. Certiorari to Court of Appeals. Sam Taylor, having been convicted of an offense, and on appeal to the Court of Appeals the judgment having been affirmed, petitions for certiorari to the Court of Appeals, to review and revise the judgment and decision there rendered in the case styled Taylor v. State, 99 South. 733. Petition dismissed. Hugh Walker, of Anniston, for petitioner. SOMERVILLE, J. In this case the record shows that defendant's application for rehearing was overruled by the Court of Appeals on April 8, 1924, and that his petition for the writ of certiorari to review the judgment of that court was filed in this court on April 24, 1924. Not being filed within fifteen days, as the law requires, the petition comes too late, and must for that reason be dismissed. Petition dismissed. MCMILLIAN LUMBER CO. et al. v. FIRST (Supreme Court of Alabama. May 22, 1924.) I. Appeal and error 900-Supreme Court will indulge, in favor of things done in trial court, all presumptions not contradicted by record. Where an appearance by defendants and of cases for trial are shown, the appellate court session of the court for the peremptory call will indulge, in favor of what was done in the trial court, all presumptions not expressly or by necessary inference contradicted by the record. 2. Appeal and error 934 (3)-Face of record held to preclude appellate court from presuming defendants' plea was filed in advance of judgment. Where record on appeal showed that default judgment was taken against defendants within 30 days from service and without their appearance, such judgment was reversible error, and the appellate court could not presume that a plea filed by defendants on the same day judgment was entered against them was filed in advance of the judgment. Appeal from Circuit Court, Greene County; John McKinley, Judge. Action on promissory note by the First Hawkins & Hildreth, of Eutaw, and R. SAYRE, J. [1, 2] Plaintiff, appellee, had judgment by default on March 27, 1923. Service was had on February 26, 1923. Defendants had 30 days after service in which to answer. The judgment, in the absence of an appearance by defendants, was premature by one day, and erroneous for that reason. Ivey v. Perry, 97 Ala. 583, 12 South. 65. However, defendants on the same day, March 27th, filed a plea of the general issue, and the contention for appellee is that thereafter, the court then sitting in regular term, the cause was triable without regard to whether 30 days had elapsed since service, and that the court here, in favor of the trial court, will presume that the plea was filed in advance of the judgment, which is to say that the cause was at issue and properly triable when judgment was rendered. Appellee's contention cannot be sustained. The appeal is upon the record proper, without a bill of exceptions. An appearance by defendants being shown, and the court in session for the peremptory call of cases for trial, in favor of what was done in the trial ANDERSON, C. J., and GARDNER and court, the court here will indulge all preTHOMAS, JJ., concur. sumptions not expressly or by necessary in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ference contradicted by the record. Plea 2. Appeal and error -792-Sufficiency of decree to support appeal jurisdictional. was filed, and judgment rendered on the same day, and, if this were the whole story told by the record, we would presume the presence in court of the defendants when judgment was rendered. But, to presume in the case presented that defendants were in court by reason of their plea-i. e. that the plea was filed in advance of judgmentwould involve a contradiction of the record, for the recital of the judgment is that "defendants, being now solemnly called, came not, but made default." The authority of Ivey v. Perry, supra, controls the case. Appellee refers to a line of cases in which it has been held that it is of no consequence whether the formal judgment is by default or nil dicit. Eminent Household v. Lockerd, 202 Ala. 330, 80 South. 412; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 South. 249; Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 South. 800. Others to the same effect might be cited. That is true where the cause is ripe for judgment and the reason of the rule of indifference to form in such cases, as pointed out in Atlantic Glass Co. v. Paulk, supra, and the cases there cited, is that the form of the judgment deprives the defendant of no privilege of insisting on any error in this court which otherwise would have availed him. Here, if in fact judgment was rendered against defendants by default with appearance by them, there was reversible error. It may be, as the brief avers, that actually the defendants were present in court by attorney, cognizant of what was being done, and raised no objection; but we know only the language of the record and that language contradicts this suggestion. Had 30 days elapsed since service, the conclusion would be different. Here, on the face of the record, judgment was rendered within 30 days from service and without appearance by defendants. Reversed and remanded. THOMAS, J. The appeal is taken from an interlocutory decree allowing alimony and counsel fees pendente lite. [1-3] The decree is not such as has been made by statute to support an appeal before final decree. The question presented is jurisdictional, and jurisdiction cannot be conferred by consent. Richardson v. First Nat. Bank of Gadsden, 119 Ala. 286, 24 South. 54; Nabers, Receiver, v. Morris Min. Co., 103 Ala. 543, 15 South. 850; Barclay, Assignee, v. Spragins, Adm'r, 80 Ala. 357. That is to say, the appeal must be dismissed by this court ex mero motu, for the reason that the court has no jurisdiction to hear and determine the matter sought to be presented for review, when an appeal as sought to be taken is not authorized by law. In Ex parte Eubank, 206 Ala. 8, 89 South. 656, this court said: "The remedy by petition for writ of mandamus is not questioned by demurrer. It was ANDERSON, C. J., and GARDNER and the proper course, MILLER, JJ., concur. JACKSON V. JACKSON. (8 Div. 624.) (Supreme Court of Alabama. May 15, 1924.) 1. Appeal and error 69 (1)—Interlocutory decree allowing alimony and counsel fees pendente lite will not support appeal. Interlocutory decree allowing alimony and counsel fees pendente lite will not support appeal. as no appeal is allowed by law from that decree"-allowing alimony pendente lite and solicitor's fees. State ex rel. Sellers v. Locke, Judge, 208 Ala. 169, 93 South. 876; Ex parte Cairns, 209 Ala. 358, 96 South. 246; Ex parte Dunlap, 209 Ala. 453, 455, 96 South. 441; Rickerson v. Riekerson, 203 Ala. 203, 82 South. 453; Ex parte Jones, 168 Ala. 183, 53 South. 261; Id., 172 Ala. 186, 55 South. 491. The appeal is dismissed. ANDERSON, C. J., and SOMERVILLE and GARDNER, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |