124 Va. 177 | Va. | 1919
delivered the opinion of the court.
This action was brought by the plaintiff to recover damages for the death of her intestate occasioned, as she alleges, by the wrongful act of Osborne M. Brook (sometimes called Oscar M. Brooke) while acting within the scope of his employment as the servant of the defendant company. There was a judgment for the plaintiff, and to that judgment this writ of error was awarded to the defendant.
The declaration on which the case was tried contained two counts, to each of which the defendant demurred. The declaration, after setting out that intestate was employed by the defendant, and that the defendant conducted a mess
“Considering the declaration as a whole, it appears that the theory of the plaintiff’s case as set out therein is that your petitioner, the defendant below, was the proprietor of a restaurant or eating-house and that the plaintiff’s intestate was a. guest or patron of the same. Out of this relation arose certain alleged duties. These duties are
The gravamen of the objection to the declaration is that it does not show any apparent connection between the duties alleged and the alleged breach of those duties and that the negligence complained of is not shown to nave been the proximate cause of the alleged injury. This objection wholly ignores the doctrine of respondeat superior which is really the foundation of the action, and assumes that it is necessary that the declaration should state what duties arise on the facts set forth to show a right of action.
The. facts alleged in the declaration are so entirely different from those alleged in Connell v. Chesapeake & Ohio R. Co., 93 Va. 44, 24 S. E. 467, 32 L. R. A. 792, 57 Am. St. Rep. 786, as to render the holding in that case wholly inapplicable here. There the death was occasioned by an unknown stranger who was never found. Here it is alleged'to have been occasioned by a servant of the defendant acting within the course of his employment.
As to the liability of a master for the wilful torts of his servant while acting within the scope of his employment, see Burns v. Poulsom, L. R. 2, C. P. 563; Rounds v. Delaware, &c., R. Co., 64 N. Y. 129, 21 Am. Rep. 597; Mott v. Consumers’ Ice Co., 73 N. Y. 543; Norfolk & W. R. Co. v. Brame, 109 Va. 422, 63 S. E. 1018; Southern Ry. Co. v. Grubbs, 115 Va. 876, 80 S. E. 749; Huffcut on Agency, secs. 245, 252.
The next assignment of error relates to the ruling of the trial court in the admission of evidence on behalf of the plaintiff. We have carefully considered this assignment, but find no error in the ruling of the trial court. The
The defendant does not claim that it was taken by surprise by the amendment, nor was any motion made to delay the trial, nor does it appear how, if at all, the defendant was injured thereby. When the amendment was first suggested, during the taking of the testimony, counsel for the plaintiff stated that “he would make any amendment to the declaration which the court might think proper in order to make the evidence in question admissible,” and the court then stated that “the question would be certain
The fourth assignment of error is as follows:
“IV. The trial court erred in.granting instructions A, B, C, D, E, F, G and H, and in refusing instructions 2, 4, 5, 7, 8, 9, 10 and 11, and in giving in lieu of instructions 2, 4, 5, 7, 8 and 9, instructions I, II, III, IV, V and VI.”
Instruction B given for the plaintiff was intended to declare the doctrine of respondeat superior, and for what
Instruction D, given for the plaintiff, is criticised because “there is not sufficient evidence in the record to justify the granting of any such instruction.” What was said about the evidence to support instruction C applies with equal force to instruction D.
Instruction E, given for the plaintiff, is criticised because not covered by the declaration. The declaration charged the wrongful and unlawful killing of Snead by Brooke, the servant of the defendant, while Brooke was acting in the course of his employment and in furtherance of the master’s business. One of the defenses was self-defense, and evidence was introduced on these subjects. The in
No objection was made to instruction G given for the plaintiff.
It is insisted by the plaintiff in error that instruction H, given for the plaintiff below, was erroneous because “the disposition of the crimimal case did have something ‘to do with this case,’ as it explained why Brooke was still in your petitioner’s employ.’.’
The instruction referred to struck from the case all of the evidence of the witness, Allen, referring to the acquittal of Brooke as the slayer of Snead on the ground of self-defense. Allen was the manager of the defendant company, and had been introduced as a witness to testify with reference to a conversation he had had with Snead’s mother. He was asked no question by the defendant about whether Brooke had been retained in the employment of the company or not, but on cross-examination he was examined at length on the subject of Brooke’s retention in the employment of the company. It was this evidence which was stricken out by the instruction under discussion. During this examination he was asked, by counsel for the plaintiff, and answered as follows: (
“Q. After this shooting the company did not discharge him from his employment as a policeman, did it? A. I
Allen was the only witness examined as to whether Brooke was subsequently retained or discharged, and as 'all of his evidence on the subject stated in the instruction was stricken out, there was no evidence left in the case as to whether he was retained or discharged. If the question was stricken out, the answer was stricken out also. Many other questions were asked him along this same line, but they need not be further noticed as no other testimony wtas introduced tending to charge the defendant on the ground of the ratification of the act of Brooke.
The authorities are in conflict as to the effect of retaining a servant who has committed a wilful injury (Lahatt’s Master and Servant, secs. 2221 and 1407), but they need not be reviewed, as the record, with Allen’s evidence stricken out, does not disclose any other testimony upon which to base a ratification. Under the circumstances, we do not think that the defendant was prejudiced by the instruction.
While the foregoing instructions are not in all respects approved, they were not prejudicial to the defendant.
The only errors assigned as to the rulings of the trial court upon instructions tendered by the plaintiff in error relate to the refusal to give instruction 10, and the modification of instructions 4 and 7. We have already pointed out that no error was committed in refusing to give instruction ten.
“The court instructs the jury that while it was the duty of the defendant company to use reasonable care to maintain order in its mess halls and to use reasonable care to protect its patrons who came there to get their meals, it is not an insurer of the safety of its patrons, and if you believe from the evidence that, in. order to perform these duties, the defendant corporation employed Osborne M. Brooke, and that it used due and proper came in employing him and in retaining him in its employ, and that Brooke became involved in a personal difficulty with Snead, m no way connected with the discharge of such duties, there cam. be no recovery, and the jury must find for the defendant.”
The trial court modified this instruction by striking out the words in italics. In this there was no error. The court had already told the jury, in instruction one given for the defendant, that “the burden is on the plaintiff to show that the injury complained of resulted from some source for which the defendant in this case is liable, and unless this is done the jury must find for the defendant.” If Brooke became involved in a personal difficulty with Snead, in no way connected with his duties as servant of the defendant, then the injury complained of resulted from a source for which the defendant was not liable, and the jury were already sufficiently instructed. Moreover, there was no evidence in the case to support the theory that the shoot
The plaintiff in error comes to this court as on a demurrer to the evidence, and there was abundant evidence to support the verdict. The motion, therefore, to set aside the verdict as contrary to the law and the evidence was properly overruled.
For the reasons stated, the judgment of the circuit court will be affirmed.
Affirmed,