191 Wis. 446 | Wis. | 1926
This action is brought against the receivers of the Milwaukee road to recover damages for an assault and battery alleged to have been committed upon the plaintiff by one Anderson, a rate clerk in the freight office of said road, in the city of La Crosse, on the 24th day of July, 1925. The schedules or tariffs were furnished to Anderson, who in his employment was charged with the duty of applying the same to the freight shipments arriving at La Crosse. Whenever disputes arose between a consignee and the road concerning rates, the same were referred to Anderson for adjustment, and where an effort in that direction was unsuccessful, the matter was either referred to Mr. Craft, the general agent, or to his assistant, Mr. Chamberlain.
The plaintiff was the manager and the secretary and treasurer of a corporation at La Crosse known as the Badger Hide & Fur Company, and this company, among other things, dealt in junk which it had shipped to it by consignors from various parts of the country.
It appears that shortly before the date mentioned a shipment of five barrels of junk arrived in the yards of the road at La Crosse, consigned to the plaintiff’s company. Under the regulations of the road, shipníeñts contained in barrels which were uncovered were assessed a trifle higher rate than those which were covered. In the instant case the-difference amounted to about one dollar. Three of these barrels had been delivered to the plaintiff and stored in his warehouse, and he made the contention that the barrels were covered and that his company was entitled to the reduced rate. He called
Up to this point there is no material conflict manifested in the evidence. Much of the evidence as to what took place thereafter, however, is in sharp conflict, as will appear from the following extracts of the testimony of the plaintiff and Anderson. The plaintiff testified as follows:
“I said to Mr. Chamberlain, ‘There is a shipment from Joe Guese, Spring Valley, Minnesota, Mr. Anderson is trying to assess too much freight on the shipment,’ and I says, T would like to have you straighten it out.’ . While I was talking to Mr. Chamberlain, Mr. Anderson rushed over to his desk. He says, T am not trying to charge any more than what is right.’ I said, ‘Mr. Anderson, the barrels over to our warehouse have cloth tops.’ He jumped around like mad. He said, ‘You are a liar.’ He said, ‘If there is any cloth tops you are the one who put them on.’ .... I said, ‘Mr. Anderson, I think you are mistaken. I am surprised a man like you would take such a stand. I won’t have anything further to do with you. I want to talk to Mr. Cham*449 berlain myself.’ He said, 'Never mind, I am in on this conversation. I will strike you on the nose.’ I said, 'Mr. Anderson, don’t be so hasty.’ Without any warning he hit me a blow right here (indicating) and my glasses fell off and he struck me right in the ear.” . ■
Mr. Anderson testified as follows:
“My desk is about thirty feet away from Mr. Chamberlain’s desk. When he got to talking to Mr. Chamberlain I walked over that way. Mr. Chamberlain asked him . . . ‘Have they all got cloth tops,’ . . . and he said ‘Yes, sir.’ I said, ‘Harry, if those barrels all have cloth tops they were put on after they got to your place.’ He said, ‘Mr. Chamberlain, I am a gentleman. I didn’t come over here to be insulted by that dirty, lousy pup.’ I said, ‘You go slow on that.’ . ... He goes around the end of the desk and up to me, his fist clenched, and said, T am not afraid of you.’ As he came toward me, with his clenched fist at me, I put my hand rather as a guard, and at the same time it took him along the side of the face, and as he struck at me I struck him a second time and gave him a side blow.”
No plea of self-defense was interposed by the defendants. While other witnesses were called by the parties, the conflict in the evidence which preceded the assault is clearly set forth in the foregoing.
Defendants’ counsel at the close of the evidence moved for a directed verdict, which was denied by the court. They then made a request for the submission of a special verdict containing the following questions:
“(1) Was the plaintiff injured as the result of an assault and battery committed upon him by one Anderson?
“(2) If you answer the first question ‘Yes,’ then answer this question: Was Anderson acting within the scope of his employment ?”
The sole question submitted involved the assessment of plaintiff’s damages, and the court held as a matter of law that Anderson when he committed the assault acted within the scope of his employment, and the conclusion of the court
In Ratcliffe v. C., M. & St. P. R. Co. 153 Wis. 281, 285, 141 N. W. 229, this court said:
“It is true that the rule is well settled that when an agent acts outside the scope of his employment his acts are not binding upon his principal. But it is not always easy to determine what acts are and wrhat are not within the scope of employment. Whether the acts of a servant are within the scope of his employment is ordinarily a question for the jury. But when the-acts are undisputed and no conflicting inferences can be drawn from the evidence, then the question becomes one of law.”
If we assume Anderson’s testimony as true, that the plaintiff immediately preceding the assault referred to him as a dirty, lousy pup, or that he used similar language, then we would entertain no hesitancy in holding as a matter of law that Anderson stepped aside from the scope of his employment and committed the assault for the purpose of resenting a personal insult. While the dispute originated at a time when Anderson was .engaged in the performance of duties connected with his employment, the language attributed by Anderson to the plaintiff was personal in its nature, and had a tendency to provoke an assault for personal and not for official reasons. If Anderson told the truth, then the insulting and humiliating remarks of the plaintiff .caused Anderson to forget momentarily his official position with the road, and transformed the relationship into a personal'one; or, in other words, it resulted in a stepping aside of Anderson from the scope of his employment. 'The situation thus detailed has impressed us so strongly that we feel that no conflicting inferences could reasonably be deduced therefrom, and that an answer by the jury to a question in the special verdict that Anderson at the time of the assault was acting within the scope of his employment could not be permitted to stand.
So that we must conclude that under the plaintiff’s evidence a jury question was presented, and one of which it can readily be said the jury was peculiarly fitted and designed to determine. With the views thus expressed by this court, the question for a special verdict proposed by defendants’ counsel can readily be settled by the jury in its answer, under proper instructions.
After the commission of the assault Anderson was retained by the road in his position as rate clerk, and plaint-
With this position this court cannot agree. If Anderson committed the assault while acting within the scope of his employment, then his retention by the road might justify the jury in assessing punitory damages; on the other hand, if the assault proceeded from a personal insult which Anderson for that reason resented, then the defendants could no more be held liable than if the assault had been committed at a time when Anderson was entirely disconnected from hisi employment. The doctrine here involved is well expressed in 18 Ruling Case Law, 802, where it is said:
“When there is no original liability for the act of a servant, because at the time of the negligence the servant was acting in his own personal business, the master does not become liable merely by reason of the fact that he thereafter retains the servant in his employ.”
See, also, Everingham v. C., B. & Q. R. Co. 148 Iowa, 662, 127 N. W. 1009; Robinson v. Superior R. T. R. Co. 94 Wis. 345, 68 N. W. 961.
By .the Court. — The judgment of the lower court is reversed, and the cause is remanded for a new trial.