inal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4096; Dec. Dig. § 1040.*] 2 MASTER AND SERVANT (§ 330*)-TORTS OF SERVANT-NEWS AGENT ON TRAIN. In an action against a news company for ings of a passenger compelled by a news agent to damages and loss suffered to the estate and feelpay an extra dime for lemons purchased, it is error to admit, over plaintiff's objection, the company's rule that on complaint of conductors tiff knew nothing of such rule. news agents would be discharged, where plain [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 330.*] suddenly and cross the track, and that, the original complaint and the amended comtherefore, it was conclusively shown that plaint was not materially variant from the origthere was no negligence on his part. It was, however, open to the jury to infer that the engineer, if he saw deceased when he flagged, knew that deceased desired to board the train, and that he must board it from the south side, that he must cross the track so to do, and that when he saw him running toward the track, and toward the road, in a path which terminated at the road, and that the road crossed the track at right angles, he was chargeable with notice that deceased would cross the track at the point at which the road crossed. It was not reasonable to suppose that he would continue in a straight line, when the path he was traveling terminated at the road, and it was not at all unreasonable that he would turn across the track when he reached the road. Under the circumstances, that was the very thing to be expected. It was not shown that deceased did anything but that all others did who desired to flag west-bound trains and to take passage thereon. It does seem that if the engineer saw deceased when he flagged the train, and as he ran to cross the track to take passage, he must have known he would cross the track at the road crossing; and, if he did, it was certainly his duty not to kill him. Under all the evidence in this case, as shown by this record, the liability of the defendant for the death of plaintiff's intestate was a question of fact for the jury, and not a question of law for the court. 3. MASTER AND SERVANT (§ 302*)-TORT OF SERVANT-SCOPE OF EMPLOYMENT. A news agent on a train is acting within the scope of his employment, so as to bind his employer, when he tortiously demands of a passenger an extra dime for lemons purchased." [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*] 4. MASTER AND SERVANT ($ 332*)-TORT OF SERVANT-QUESTION FOR JURY. Where a news agent on a train tortiously demands and exacts from a passenger an extra dime for lemons purchased, it is for the jury to say, under all the evidence, whether plaintiff has suffered actual damages in addition to the extra dime exacted. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 332.*] Appeal from Circuit Court, Coosa County; Action by Mrs. Nellie Cleaney against T. remanded. Case, 129 Ala. 483, 29 South. 775; Boyd's for defendant, plaintiff appeals. Reversed and It therefore follows that the general affirmative charge was improperly given for defendant. But in accordance with the views of the majority the judgment of the lower court is affirmed. Affirmed. DOWDELL, C. J., and SIMPSON, ANDERSON, MCCLELLAN, SAYRE, and EVANS, JJ., concur. MAYFIELD, J., dissents. (167 Ala. 134) CLEANEY v. PARKER et al. (Supreme Court of Alabama. Feb. 26, 1910.) 1. APPEAL AND ERROR (§ 1040*)-HARMLESS ERROR-DEMURRER TO COMPLAINT. Error in sustaining demurrers to an original complaint is harmless, where the evidence practically undisputed would have supported a verdict under either count as amended, if it would have supported one under either count of The oral charge of the court is as follows: "If you find after this transaction he (Elrod) said nothing more to her about the payment until she, after receiving the lemons, and paying the dime which had been received, said to Elrod, the news agent, 'Was that a sufficient sum to pay you?' and Elrod by that inquiry was induced to practice a fraud upon her by saying 'No,' and she after that paid him another dime, then I charge you that in the collection of the second dime Elrod was not acting within the line and scope of his authority. If you believe from the evidence that he was collecting the second dime, intending to appropriate it to his own use, and not to the use of the Parker Railway News Company, the defendant would not be responsible; for in that event the fraudulent collecting of the dime was Elrod's individual tort." Further charging the jury, the court said, that "if you believe from the evidence that after the sale of the lemons and the receipt of the dime Elrod, the defendant's agent, was talking to a lady in the car, and then turned to Mrs. Cleaney and said that she had not paid for those lemons and demanded the money a second time, I charge you that in the receipt of the money the first time Elrod was acting within the line and scope of his authority, and that his authority ended after collecting the dime, and that if you believe from the evidence that, after collecting the first dime, he turned back to Mrs. Cleaney and demanded the money a second time, he was not acting within the line and scope of his authority as the defendant's agent, and the defendant would not be liable for his so doing." Further charging the jury, the court said: "I charge you that, if the plaintiff was entitled to recover at all, the only damages she sustained would be the extra dime she paid for the lemons.” shown to have any knowledge, actual or constructive, of such rule, nor was it binding upon her, and it could not tend to exculpate the defendants from the wrong of the agent. Such a rule as was shown, of discharging agents upon the complaint of conductors, could not exempt the defendants from liability for the acts of agents before they were so discharged. We also think the trial court erred in those parts of its oral charge to which exceptions were reserved, in so far as the court instructed the jury that the agent of defendants was not acting within the line and scope of his D. H. Tiddle, for appellant. Lackey & authority in collecting the second dime from Bridges, for appellee. MAYFIELD, J. The appellant, a woman, was a passenger on board the train of the Central of Georgia Railway Company. The appellees were conducting what is commonly known as a "news butch business" on said train. Appellant bought some lemons from the "butch," appellees' agent, in charge of their business on said train, and, as she claims, paid the price of 10 cents therefor. Appellant claims that she was not certain that she had paid the "butch" for the lemons, and again asked him the price; that he replied 10 cents; that the "butch" again demanded of her the price, which she declined to pay, saying she had paid him once; that he denied this, and insisted upon her paying the dime, which she refused to do; that the "butch" then attempted to take the lemons from her; that she thereupon threw up her hands to ward him off, telling him she would pay him the dime rather than have him take the lemons from her; that she then paid him the dime, and he, putting it in his pocket, replied that he was in a dime and that this was his profit. The appellant sued to recover the damages and losses suffered to her estate and feelings. plaintiff. While, in collecting the second dime, he may have exceeded-probably did exceed his authority and violated instruc tions from his principals, yet it was clearly within the line and scope of his authority in such manner as to render the defendants liable to plaintiff for such tort of the agent; while it was the tort of the agent, as between him and his principals, it was the tort of both, as between them and the plaintiff. While it is true and correct, as stated by the court in its instructions to the jury, that the damage to plaintiff's estate was only one dime, yet it was a question for the jury, under all the evidence, as to whether she was entitled to any other actual damages. The effect of the court's instructions was that plaintiff could only recover back the dime which she was wrongfully required to pay by the defendants' agent. This was prob ably an invasion of the province of the jury. The judgment is reversed, and the cause remanded. Reversed and remanded. DOWDELL, C. J., and SIMPSON and McCLELLAN, JJ., concur. (166 Ala. 35) PETERS v. STATE. The loss to her estate was one dime, which, under all the evidence, if true, she was entitled to recover. Whether she was entitled to recover as for an assault, insult, or injury to her pride or feelings was clearly a question for the jury, and they seem to have decided 1. BREACH OF THE PEACE (§ 1*)—"ABUSIVE" it against her. Jan. 20, 1910. (Supreme Court of Alabama. Rehearing Denied Feb. 26, 1910.) LETTER. If there was any error in sustaining de- Within Code 1907, § 6218, making it an ofmurrers to the original complaint, it was clear-fense to send a threatening or abusive letter, which may tend to provoke a breach of the ly without injury, because the same evidence, peace, a letter is "abusive" which is offensive, which is practically without dispute, would and charges the sendee with a degradation of have supported a verdict under either count character, or a moral obliquity; as is a letter as amended, if it would have supported one calling the attention to an unpaid bill, stating that, if the sendee knew how contemptible he apunder either count of the original complaint. peared in the matter, he would pay the bill at The complaint as amended, and as to which once, and that, if he did not pay it in a short demurrers were overruled, was not practical- time, the sender would have to proceed in some way to collect it, and concluding, "I know how ly or materially different from the original as worthless and contemptible you are, but this is to which the demurrers were sustained. news to you." The trial court erred in allowing defendants to prove, over plaintiff's objection, their rule with news agents, where a complaint is made by a conductor. The plaintiff was not [Ed. Note.-For other cases, see Breach of the Peace, Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 1, pp. 48, 49.] 2. ATTORNEY AND CLIENT (§ 33*)-PRIVILEGE- an effort to collect said bill for the Eclipse LETTER OF LAWYER. Paint & Manufacturing Company." That a letter is sent by a lawyer in an effort to collect an account does not make it privileged, so as to relieve him from the penalty prescribed by Code 1907, § 6218, for sending a threatening or abusive letter, which may tend to provoke a breach of the peace. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 8 46; Dec. Dig. § 33.*] 3. BREACH OF THE PEACE (§ 5*)-INDICTMENT AND PROOF-VARIANCE. A conviction under Code 1907, § 6218, of sending a threatening or abusive letter, may be had under an indictment charging the sending of it to C., on proof that it was sent to C. & Co., and that C. did business under the name of C. & Co., and consequently that C. & Co. was C. [Ed. Note. For other cases, see Breach of the Peace, Cent. Dig. § 5; Dec. Dig. § 5.*] 4. BREACH OF THE PEACE (§ 4*)-SENDING LET TERS - TENDENCY TO PROVOKE BREACH OF An indictment under Code 1907, § 6218, making it an offense to send a threatening or abusive letter, which "may tend" to provoke a breach of the peace, is sufficient in charging the sending of a threatening and abusive letter, which "tended" to provoke a breach of the peace. [Ed. Note. For other cases, see Breach of the Peace, Cent. Dig. § 5; Dec. Dig. § 4.*] 5. INDICTMENT AND INFORMATION ( 147*) DEMURRER TO INDICTMENT. A demurrer to an entire indictment, a count of which is good, is properly overruled. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 490-494; Dec. Dig. 147.*] Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge. Matthew Peters was convicted under Code 1907, § 6218, for sending a letter, and appeals. Affirmed. The letter referred to is as follows: "Alexander City, Ala., 4/1/99. In re Eclipse Paint & Mfg. Co. v. W. M. Conine & Co. $37.50. Messrs. W. M. Conine & Co.-Dear Sirs: I wish to call your attention to the above matter and to remind you that it is unpaid. If you knew how contemptible you appear in this matter, you would pay this bill at once. If you do not pay this bill in a short time, I shall have to proceed in some other way to collect it. I know how worthless and contemptible you are, but this is news to you. Yours very truly, M. Peters." The second plea referred to in the opinion is as follows: "That defendant is a regularly licensed lawyer under the laws of the state of Alabama, engaged in the practice of the legal profession in Tallapoosa county, Alabama, in the town of Alexander City; that he was engaged in the practice of law at the time he wrote the document the grand jury has indicted him for; that he held a bill for collection amounting to $37.50 for the Eclipse Paint & Manufacturing Company, engaged in the manufacture and sale of paint; that the documents indicted for are duns sent or mailed W. M. Conine & Co. at Camp Hill, Ala., in W. M. Lackey, John R. Tyson, and M. Peters, for appellant. Alexander M. Garber, Atty. Gen., for the State. SIMPSON, J. The appellant was indicted and convicted, under section 6218 of the Code of 1907, for sending a threatening or abusive letter which tended to provoke a breach of the peace. The first count in the indictment charged that the letter was sent to W. M. Conine, and the other three counts charged the sending of the letter to W. M. Conine & Co. The bill of exceptions shows that four letters were sent, but only one within 12 months before the finding of the indictment, which letter was addressed to W. M. Conine & Co. As to whether the lan- ill, use injuriously, hurt; to wrong in speech, which is offensive, and which charges the We hold that any language, in a letter, sendee with a degradation of character, or a moral obliquity, is "abusive," within the 1908 (which will be set out by the reporter) meaning of the statute. The letter of 4/1/ comes within the meaning of the statute, and the fact that it was sent by a lawyer in an effort to collect an account does not make it "privileged," so as to relieve the writer of the penalty prescribed by the statute. The law does not confer on a lawyer any privilege to use abusive language in attempting to collect an account. The high ideals of the profession demand of him that "sauviter in modo" which dignifies his calling and which is not inconsistent with "fortiter in re." Consequently the demurrer to plea 2 was properly sustained. A The evidence shows that W. M. Conine did business under the name of W. M. Conine & Co., and consequently W. M. Conine & Co. was W. M. Conine. Things that are equal to the same thing are equal to each other. letter addressed to "W. M. Conine & Co." would not be delivered to any one except W. M. Conine. It is insisted that the first count in the indictment is not sufficient for a conviction under the statute, because the language of the statute is, "which may tend to provoke a breach of the peace," and said count charges that the language "tended to provoke a breach of the peace." In the case of Johnson v. State, 152 Ala. 46, 44 South. 670, objection was made to the indictment, * [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4704; Dec. Dig. § 1208.*] APPEAL AND ERROR (8 1208*)—Reversal— RESTITUTION-NATURE OF REMEDY. Restitution to a party obtaining the reversal of a judgment against him is for the purpose of restoring to him his own, or its equivalent, as near as may be, of which he has been deprived by an erroneous judgment reversed, and the decree may be a part of the reversed judgment, or a separate judgment based on the one of reversal. and it was contended that the language of | doer of compensation for services in the manthe statute implied that the abusive or agement thereof. threatening language used may have a tendency to provoke a breach of the peace at a time subsequent to the finding of the indict-3. ment; but the court held that the words used in the statute "are not only descriptive of what may result in the future, from the sending of the letter, but which, in fact, may never happen, but of the character or quality of the letter"; also, that, "if the language of the letter has any tendency towards provoking it, the offense is complete." The indictment in the language of the statute was sufficient. Johnson v. State, 152 Ala. 46, 48, 44 South. 670. It is evident that the tendency referred to in the statute relates to the time of the sending of the let-party obtaining a reversal of a judgment against A judgment or decree of restitution to a ter, and, while it might have been sufficient him does not necessarily finally determine the to allege that the language might have tend- rights of the parties to the subject-matter restored. ed to provoke a breach of the peace, yet the language of the present count 1, that it "tended" to provoke a breach of the peace, certainly covers the charge that it might have had that tendency, and the language of the indictment is sufficient, whether the letter did, or not, actually produce a breach of the peace. It results that a conviction could be had under the first count, on the proof of sending the letter to W. M. Conine & Co. The demurrer being to the entire indictment, it is unnecessary to determine whether there was any error in overruling the demurrer to the other counts. Weems v. Weems, 69 Ala. 104; Ala. Nat. Bank v. Halsey, 109 Ala. 196, 19 South. 522; K. C., M. & B. R. Co. v. Lackey, 114 Ala. 152, 21 South. 444. There was no error in the refusal to give either of the charges requested by the de- The judgment of the court is affirmed. DOWDELL, C. J., and MCCLELLAN and MAYFIELD, JJ., concur. (166 Ala. 325) LEHMAN-DURR CO. v. FOLMAR et al. (Supreme Court of Alabama. Nov. 18, 1909. Rehearing Denied Feb. 26, 1910.) [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4705, 4706; Dec. Dig. 1208.*] 4. APPEAL AND ERROR (§ 1208*)-DECISIONS REVIEWABLE EFFECT OF JUDGMENT OB DECREE RESTORING PROPERTY. ror, Cent. Dig. §§ 4701-4709; Dec. Dig. § 1208.*] [Ed. Note. For other cases, see Appeal and Er Appeal from Chancery Court, Montgomery County; L. D. Gardner, Chancellor. Bill by the Lehman-Durr Company against George A. Folmar and others. From a decret in favor of respondent Folmar, complainant appeals. Affirmed. See, also, 154 Ala. 480, 45 South. 289. Gunter & MAYFIELD, J. The case on appeal is thus correctly and succinctly stated by counsel for appellant: "Lehman-Durr Company filed a bill to set aside a fraudulent conveyance executed by Folmar to his children. There was a final decree in favor of the complainant, and the property alleged to have been fraudulently conveyed was put up for sale under the decree. George A. Folmar filed a cross-bill in the main cause, in which he alleged that, when he executed the notes on which the suit was founded, to Lehman-Durr Company, the latter had agreed to transfer to him all the collaterals which it had held for a certain debt, and amongst those collaterals was a note for a large sum, which they had not surrendered. He prayed an offset of the amount of this note. There was a demurrer to the cross-bill, which was sustained by the chan 1. APPEAL AND Error (§ 78*)-DECISIONS RE- cellor, and it was dismissed. This court held VIEWABLE-FINALITY OF DECREE. A decree, restoring to a party land of which he had been deprived by a reversed decree, is final in such sense as to support an appeal under Code 1907, § 2837 (426). [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 464–483; Dec. Dig. § 78.*] 2. APPEAL AND ERROR (§ 1208*)—Reversal that the lower court erred in dismissing the cross-bill, and reversed the case. After the reversal, George A. Folmar made a motion in the court below, praying that Lehman-Durr Company be compelled to restore the lands, and to account for the rents thereof pending the time possession of the same had been detained under said purchase (Record, pp. 33, A party entitled to restoration of lands of 34). There was a demurrer to the petition which he was deprived by a reversed decree was (Record, pp. 35, 36). The chancellor sustainentitled to the rents received, with interest thereon, during the time they were wrongfully ed the demurrer, but made a decretal order held, without making allowance to the wrong- of reference. Lehman-Durr Company ap RESTITUTION-SCOPE OF RELIEF. pealed to this court, and the appeal was dismissed (154 Ala. 480, 45 South. 289) on the ground that the order of reference was merely interlocutory, and that, until it had ripened into a decree for money, an appeal could not be taken from it. 10 per cent. commissions on the rents collected therefrom; that the charge was a reasonable charge for the service; and that Lehman-Durr Company paid the commissions to him as stated in the account. The account, itself, rendered by Lehman-Durr Company, was attached as Exhibit A to the report, and appears on pages 47-50 of the Record. The register allowed these commissions paid to Sentell, and calculated the interest on the balance, refusing to make annual rests in the calculation of the interest. Folmar excepted to the report of the register, on these two grounds, and the chancellor sustained the exception, reversed the register, and proceeded to render such decree as should have been rendered on the evidence before the register, decreeing that Lehman-Durr Company pay to Folmar the sum of $994.97. This was nearly $300 more than the register ascertained to be due, as shown by his report (Record, p. 50). The chancellor, in overruling the register, proceeded to calculate the interest on the yearly rents, after giving credit for the taxes, and refused to allow any of the commission paid." "After the dismissal of the appeal, the register proceeded to hold the reference. The lands had already been delivered up pursuant to a notice from the solicitors of LehmanDurr Company to the solicitors for said Folmar (Record, pp. 41, 42), so that the question before the register was simply one of rents and profits for which Lehman-Durr Company should account during the period of its possession. In the decree of reference (Record, p. 37) the chancellor held that the rule applying on an accounting by and between mortgagor and mortgagee, after default and before foreclosure, as to the liability of the mortgagee to account for rents and profits, does not apply. The mortgagee is regarded as a trustee and must use due diligence in renting the property. Here there is no such relation, and the court merely gives back to the petitioners what has been received from them, and not such as might have been received under certain conditions. The court then rendered a decree sustaining the demurrers to the petition of Folmar and his associate respondents (who had joined in the same amendment); but, notwithstanding the fact that it sustained the demurrers, it proceeded to render a decree directing the register to state an account, in which he should ascertain, and report: (1) What rents and profits had been received by the complainants, of the property and of each parcel separately, and when so received separately; (2) what taxes had been paid out by the complainants on the lands and on each parcel separately, and when paid; and (3) what re-interest is incident to the principal, and folpairs had been made on the property, and when made, and the nature of the same, together with the condition of the repairs (Record, pp. 37, 38). "The register held the reference as required, and stated the account, and reported a balance owing by Lehman-Durr Company of $994.97 (see page 53). On the reference Lehman-Durr Company filed a statement showing the amount of rents collected and when collected, and the taxes paid. They also claimed credit for certain expenses in the way of commissions charged by one Sentell, for renting out the property and collecting the rents. There was an agreement of counsel (shown on page 44 of the Record) that the place of business of Lehman-Durr Company was in the city of Montgomery, Ala.; that the lands sold were situated in Crenshaw county, Ala., where the plaintiff had no representative; that, after the lands were bought under the decree, plaintiff employed Sentell, who resided near the land, and who was a competent man for that purpose, to find tenants for the land and collect the rents; that The decree appealed from in this case is final in such sense as to support an appeal under section 2837 (426) of the Code. Black on Judgments, vol. 1 (2d Ed.) § 41; Walker v. Crawford, 70 Ala. 567. We find no reversible error in the decree of the chancellor appealed from, ordering Lehman-Durr Company to pay over to the defendants the sum of $994.97. This appears to have been the amount of the rents, with the interest thereon, received from the lands during the time they were wrongfully held by Lehman-Durr Company and for which restitution was made by the decree. Rents are incident to the lands, and follow them; lows it. The decree of restitution rendered only restored that which was wrongfully acquired (certainly wrongful, so far as concerns this appeal). It only made Folmar wholeonly gave him that which he would have had but for the wrongful holding. It only restored the land taken and held, and its incidents. Lehman-Durr Company's acts being wrongful, it was properly denied compensation for services in its wrongful assumption of control and management of Folmar's land. Certainly this must be considered to be the attitude and condition of the parties so far as this appeal is concerned. Restitution, such as this, is a remedy, the purpose of which is to restore to an appellee his own or its equivalent, as near as may be, of which he has been deprived by an erroneous judgment which is reversed. A decree of restitution is intended to restore to the aggrieved party that which he lost in consequence of the erroneous judgment reversed. It may be a part of the reversed judgment, or it may be a separate judgment based on the one of reversal. |