106 Wis. 434 | Wis. | 1900
1. The principal ‘ assignment of error upon which appellants dwell is that the evidence conclusively ■establishes that the assault by Backstrom upon the plaintiff was entirely personal to the former for the purpose of wreaking personal vengeance, or satisfying his personal anger and indignation, aroused by a threatening motion and an opprobrious epithet applied to him by the plaintiff. Backstrom “testified upon the trial that the plaintiff, in the course of the colloquy, threw his hands up across the bar, in a manner in
2. The appellants contend further that, although the bartender may have been acting within the scope of his duties, the master is not liable if the plaintiff, by words or acts, conducted himself in such improper manner as was calculated to arouse and bring on personal altercation with the bartender, and the assault complained of was wholly or in part the result of such misbehavior on the part of the plaintiff. The court refused a requested instruction to that effect, and, on the contrary, charged: “IfBackstrom was impelled to the assault, whatever words may have passed, by a purpose to enforce payment of the liquor bill that he was trying to collect, and committed the assault as incidental to such effort, plaintiff should recover.” The rule thus laid down by the court is that sanctioned by the authorities above cited; and the exception thereto, contended for by appellants, in case of misconduct or verbal provocation on ■ the part of plaintiff, is nowhere recognized. Such an exception would ignore the principle on which the liability is founded, namely, that the tortious act of the servant, when within the scope of his duty, is the act of the master himself. That being the principle, the tort, when so committed by the servant, can be justified on no grounds less cogent than those which would serve as justification of the same act if committed by the master. In Rogahn v. Moore M. & F. Co. 79 Wis. 575, it is said: “It is generally agreed that for negligent or wrongful acts of the servant in the line of his duty, for which the master would be liable if the act were done by himself, the master is responsible.” It need hardly be stated that neither insult nor vituperation can fully justify assault and battery, though they may properly mitigate damages
3. An error assigned to a refusal to discharge a juror on
We discover no error.
By the Court.— Judgment affirmed.