180 A. 115 | Pa. Super. Ct. | 1935
Argued May 3, 1935. On mature consideration of the pleadings and the evidence, we are of opinion that the averments in the plaintiff's statement of claim, supported, as they are, by the evidence in the case, will not permit a recovery in this action, and that judgment non obstante veredicto should have been entered in favor of the defendants.
The action was brought by plaintiff against his former employers to recover the damages sustained by him as a result of a wilful and malicious assault upon him by his `boss', or supervisor, — another of defendant's employees —, because of plaintiff's refusal, during the lunch hour, and while he wasoutside the course of his employment, to proceed with his work and press certain clothes.
The statement of claim averred that plaintiff, a minor, was employed by the defendants, who are cleaners and dyers, to operate one of its machines used for pressing men's suits; that on June 23, 1933 "during the lunch hour, between 12:00 o'clock noon and 1:00 o'clock P.M. while the said [plaintiff] was outsidethe scope of his employment the said Max Steinberg [defendants' employee and plaintiff's boss] in furtherance of the partnership business and as agent, servant and employee of the said defendants ordered the plaintiff . . . . . . to press some suits which the said plaintiff refused to do. . . . . . That upon the said plaintiff's refusal to perform the said work during his lunch hour, the said Max Steinberg as agent, servant and employee of the defendants, and in furtherance of the defendant's business, wilfully and maliciously struck the said [plaintiff] several violent blows and strokes upon his head, face, chest and divers parts of his body", etc. *487
In their answer1, the defendants did not deny plaintiff's averment that the matters complained of took place `during the lunch hour' and while plaintiff `was outside the scope of his employment'; nor that Max Steinberg wilfully and maliciously struck the plaintiff a number of violent blows, etc.; but they did deny the agency or employment of Max Steinberg, who committed the assault, and that he was at the time employed by the defendants as agent, servant or employee or was acting in furtherance of their business.
We think there was evidence, which while not very strong, was sufficient to go to the jury, that Max Steinberg was an employee of the defendants at the time of the occurrence complained of, who supervised or directed plaintiff's work; that he was also a son of one of the partners did not affect defendants' liability. The jury's verdict establishes such employment.
The evidence, viewed in the light most favorable to the plaintiff and in accord with his version of the facts, is that while he was resting during the lunch hour and on his way from the third floor to the second floor to get a drink of water, Max Steinberg met him at the bottom of the stairs with a couple of suits over his arm. His own story follows:
"He said he wanted me to press the suits for him. I said it was not time yet. He said he had to have them. I said he has to wait until my time is up. He said he wouldn't wait, and I said I couldn't do them now. He grabbed me by the arm and pushed me back up the stairs, said he would make me do them. When he got me towards the pressing machine, he said he was going to make me do them. I said I would not do them and he called me a name and I called him a name back and he grabbed me by the arm and hit me in the face with his fist and after he hit me he pushed across towards the stairs and knocked me to the floor and after I was *488 on the floor he started to put his knees on my stomach — I don't just remember very much after that, and he sent me down to the office. He told me to go down to the office and on going down to the office he told the bookkeeper to pay me off and the bookkeeper gave me my pay and I went home."
The assault, according to plaintiff's story, was unprovoked by anything except plaintiff's calling the attacker a name, after the latter had first called plaintiff a name. It was not connected with Max Steinberg's duties as supervisor of the pressing machines, nor was it the result of any negligent act on his part. No negligence on the part of the defendants' agent was averred or proved. The attack was just what the plaintiff had averred in his statement that it was, `wilful and malicious'.
The Supreme Court has held a number of times that where the act of the employee causing injury was so far removed from the duties of his employment as to have in it no element of negligence, but to have been done wilfully and maliciously, the doctrine `respondeat superior' does not apply and the wrongdoer alone is responsible. Thus in McFarlan v. Penna. R. Co.,
Again in Rohrback v. Penna. R. Co.,
The same principle was applied by President Judge RICE of this court in the case of Greb v. Penna. R. Co.,
This case is distinguishable in its facts from the cases2
relied on by the appellee, where the employee was directed by his employer to retake a bailed article or other piece of personal property, and in executing the errand used more force than was necessary; and from cases3 where it was a part of the employee's duties to put a trespasser off the train, or car, or wagon, and in doing so he was guilty of undue force or threat or some reckless or negligent act, causing injury; and from Pilipovich v. Pittsburgh Coal Co.,
Nor are the workmen's compensation cases4, where an employee is hurt in an altercation with a fellow-employee growing out of some dispute arising out of the employment, applicable, for the Workmen's Compensation Act (Act of June 2, 1915, P.L. 736) by implication makes such injury compensable unless it was "caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment" (sec. 301).
Common carrier cases, where the carrier was held *494
liable for the assault of its employee on a passenger, are also distinguishable because there the liability was based not so much on the doctrine `respondeat superior', as because of the duty of the common carrier to exercise the utmost degree of diligence and care in the transportation of its passengers, and this duty includes protection against the active participation of its servants in a wanton and unprovoked attack upon a passenger, while he is being transported and while the servant is engaged in executing the contract of carriage. See Artherholt v. Erie Elec. Motor Co.,
By no stretch of the imagination can it be conceived that it was any part of Max Steinberg's duties to strike or beat the plaintiff for refusing to carry out his instructions, even when working; much less so, when the plaintiff was enjoying his noon recess and was not required to resume his duties or begin work until the rest hour was over. No such action was contemplated in the industrial relation between the two employees. The beating was the result of a personal quarrel between them which, while it grew out of the unjustified demand on the plaintiff that he work during the rest hour, — just as in the Rudgeair case, supra, it grew out of the refusal of the teamster to get off the track — was actually precipitated by inflamed passions over the calling of insulting names. The doctrine of `respondeat superior' does not include injuries so received. For such wilful and malicious trespasses the wrongdoer alone is responsible. See also Vadyar v. L. N.E.R.R. Co.,
With this disposition of the case we need not discuss the other questions raised.
The judgment is reversed and is here entered in favor of the defendants non obstante veredicto.