9 So. 2d 805 | Fla. | 1942
Plaintiff in error sued for the wrongful death of her husband. She alleged the killing of her husband by one M.R. Carn; that Carn was employed by defendant in error to recover over-payments to employees; that while discharging such employment he approached deceased and a controversy arose between Carn and deceased; thereupon Carn procured a pistol and pursued deceased into the woods and killed him.
Plaintiff in error relies on Stimson, et al., v. Prevatt,
Plaintiff in error asserts that only by taking testimony can the facts and circumstances be known. Before thus proceeding it is incumbent upon plaintiff to allege a prima facie case. The fallacy of the declaration appears from failure to charge that defendant armed Carn or had any knowledge that he was so armed. It is not alleged that defendant instructed Carn to assault deceased or ratified his wrongful act. Admitting all allegations, she has not made a case under the principals of the Stinson case. There is abundant authority that the master's liability does not arise unless the tortious act was committed as an incident to the master's business and while acting within the range of employment, or that the master directed the wrongful act or ratified same *765
afterward. Matsude v. Hammond,
An unlawful assault is not a necessary or usual method employed to collect money. See Collette v. Rebori, 107 Mo. APP. 711, 82 S.W. 552.
The judgment is affirmed.
BROWN, C. J., WHITFIELD and BUFORD, JJ., concur.