# Atlantic Coast Line R. Co. v. Brackin

> Supreme Court of Alabama · November 14, 1946 · 248 Ala. 459

URL: https://www.frixlaw.com/law-library/cases/3228547

## Case

- **Full name:** Atlantic Coast Line R. Co. v. Brackin.
- **Court:** Supreme Court of Alabama
- **Decided:** November 14, 1946
- **Citations:** 248 Ala. 459; 28 So. 2d 193; 1946 Ala. LEXIS 7
- **Precedential status:** Published
- **Opinion:** Addendum by Brown
- **Judges:** Brown, Gardner, Livingston, Simpson, Stakely
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved in part by Decatur Petroleum Haulers, Inc. v. Germany, 268 Ala. 211 (1958).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3228547

## Opinion text

On Rehearing.
BROWN, Justice.
Counsel for appellant renews his insistence “that the plaintiff’s allegation of wantonness charged the defendant corporation with the damnifying act and in the absence of proof that the corporation participated in the damnifying act, the defendant was entitled to the affirmative charge.” To sustain this contention he relies on the decision in the case of Birmingham Railway Light & Power Co. v. Hayes, 153 Ala. 178 , 44 So. 1032, 1036 , herein the court speaking by Anderson, J., observed:
“The fifth count of the complaint avers that ‘the defendant then and there by its servants or agents
so wantonly conducted itself
in and about the use, management, and operation of one of its cars * * * as to wantonly run said car with great violence against the plaintiff.’ The count charges the corporation with actual participation in the damnifying act, * *
Said count was not drawn under and doess not invoke the doctrine of respondeat superior.
In the instant case as pointed out in the original opinion the counts of the complaint averred that “ ‘the defendant by and through its agents, servants or employees, who
were acting within the scope of their employment,
* * * did wantonly and recklessly propel its passenger train * * * ’ against the automobile of plaintiff’s intestate at a public crossing within the corporate, limits of Dothan, thereby proximately causing his death.” These counts clearly invoke the doctring of respondeat superior and show that the injury and death of plaintiff’s intestate were consequential, not the result of direct corporate action, — counts in case, not trespass. [Italics supplied.] Southern Bell Telephone & Telegraph Co. v. Francis, 109 Ala. 224 , 19 So. 1 , 31 L.R.A. 193 , 55 Am.St.Rep. 930 .
Appellant also relies on Louisville & Nashville R. Co. v. Porter, 196 Ala. 17 , 71 So. 334, 335 . It will be noted that while the complaint in that case charged the agent or servant with wanton and willful wrong, it ascribed the injury and death,, not to the acts of the corporation, but to the acts of the agents or servants acting within the scope of their agency. The. court observed:
“ * * * Wrong of this sort has been properly characterized as the equivalent of universal malice; to its existence the specific intent to injure any particular person is not essential. Weatherly v. N., C. & St. L. Ry. Co., 166 Ala. 575 , 51 So. 959 . This court has frequently held that to the-implication of wantonness it is essential that the act done, or omitted, should be done or omitted with a knowledge and a present consciousness that injury will probably result. Louisville & N. R. Co v. Brown, 121 Ala. [221], 226, 25 So. 609 . Wantonness of that character is the moral and legal equivalent of intentional wrong, and rests upon the just apprehension, with which the wrongdoer is charged, not of a mere possibility, but of a probability, a. likelihood, that untoward consequences, will ensue to some one, and this probabil
*463
ity, this likelihood, must have support and foundation in a reasonable interpretation of the evidence. * * *.”
These cages clearly illustrate that a •complaint drawn properly under the doctrine of respondeat superior, though the •charge is willful, intentional or wanton wrong, does not require proof that the corporation participated in the damnifying act. Louisville & Nashville R. Co. v. Abernathy, 197 Ala. 512 , 73 So. 103 ; DeBerry v. Goodyear Tire & Rubber Co., 237 Ala. 223 , 186 So. 547 ; Ex parte Louisville & Nashville R. Co., 203 Ala. 328 , 83 So. 52 .
We do not wish to be understood as holding that the counts of the complaint on which the case was submitted to the jury are models of perspicuity and •clearness, or that they are not subject to demurrable defects. Their sufficiency is not questioned by the assignments of error on this appeal. Turnipseed v. Burton, 4 Ala.App. 612 , 58 So. 959 .
The application for rehearing is without merit and is overruled
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3228547. Public record. Not legal advice.