58 A. 664 | R.I. | 1904
The declaration in this case sets out, in effect, that a violent assault was committed upon the plaintiff, by one of the defendant's servants, by throwing a sharp piece of iron at her while she was standing on the sidewalk and looking in at an open window of defendant's manufactory, which missile struck her in the eye and seriously injured her.
It is also alleged, in substance, that at the time when said missile was thrown, and as the occasion for throwing the same, the plaintiff, with other small children, was annoying the defendant's servants by standing at said window and attracting their attention.
The action is trespass on the case for negligence, and it is before us on demurrer to the declaration, based on various grounds, amongst which is the ground that the declaration sounds in trespass and not in trespass on the case as set out therein.
We think the demurrer should be sustained. The declaration does not show either that the assault was committed by authority from the master — the defendant in this case — or that it was an act within the scope of the servant's employment. And in the recent case of Sekator v. Lannon,
The plaintiff's counsel contends that the case is within the rule laid down in Mossessian v. Callender, McAuslan TroupCo.,
But, even assuming that the declaration might be amended in the particular referred to, still we are of opinion that it would not state a case against the defendant, and for the reason that the defendant owed no duty to the plaintiff in the premises, and hence, as to her, it was not called upon to provide competent and careful servants. The only relation in which the plaintiff stood to the defendant corporation at the time of receiving the injury complained of, if indeed she occupied any relation to it, was that of a trespasser. The defendant had not held out any invitation to her to come upon its premises, or to stop in front of its windows; and hence it occupied a very different relation towards her from that which a storekeeper occupies towards a person who is lawfully in his store for the transaction of business. In such a case a well-recognized duty devolves upon the storekeeper in favor of the person patronizing him, namely, a duty to furnish a reasonably safe *195 place in which to transact the business which he is impliedly invited to transact, and competent and prudent servants to aid him therein.
If it is true, then, as we think it is, that the defendant owed the plaintiff no legal duty in the premises, she has no cause of action against it; for, as said by Rogers, J., inPaolino v. McKendall, 24 R.I. p. 435: "The basis of a cause of action for injury to a person, by reason of negligence or want of due care, is the breach of some duty or the non-observance of some obligation that the defendant is under to the plaintiff. As said by the N.J. Court of Errors and Appeals in D.L. W.R.R.Co. v. Reich,
Bucci v. Waterman,
In the case at bar, the servant who threw the missile was not, so far as appears, in charge of the defendant's manufactory or any part thereof, nor does it appear that he had any authority or duty whatsoever in the premises. The case of Staples v.Schmid,
If the servant who committed the assault had been a watchman *196 or other person whose duty it was to take care of defendant's property, and incidentally to eject trespassers therefrom, the case would be very different and might fall within the rule governing the Schmid case. But as the declaration now stands it simply shows a willful trespass, committed by a person in the defendant's employ, for which he, and he alone, is liable.
Demurrer sustained, and case remanded for further proceedings.