Sage Club v. Hunt

Wyo., 400 P.2d 542 Strahan

Strahan, supra, pointed this court out that by

the award court the district

subject except to review for abuse discre-

tion. We should not invade the discretion-

ary province any the district on

pretext.

Having concluded in this instance that

thе district its court had abused discretion deciding the upon improper legal

standard, the majority opinion pro then

ceeds not to exercise discretion court, doing

behalf district but so

encompasses weighing obvious within opinion.

evidence We thus must

recognize an infringement another proposition frequently

classic stated

court, credibility which is that of wit the weight given

nesses and to be their

testimony wholly within the discretion of

the trier of v. J. Allen fact. Gibson T.

Agency, Wyo., (1965); Koch v.

Brown, Wyo., Severin Hayes, Wyo., Con Hewitt,

dict v. Wyo., 369 P.2d agree

IWhile that there was error in this

instance, I am that the only way ‍‌‌‌​‌‌​​​​‌‌‌​‌​‌​​​​​​​‌​​‌‌‌​​​‌​‌​​​​​‌​‌‌​​‌‍convinced infringing upon

to avoid discretion

the district reverse its judgment court is to proceed- rеmand the case for further

ings under the proper legal standard. CLUB, (Defendant),

The SAGE HUNT, Appellee

David Leland

(Plaintiff).

No. 5532.

Supreme Wyoming.

Dec. 1981. inflicting bruises,

his nose and other and stairs, then threw down the rein- appellee juring his back. may

This that an employer court has held an negligent held liable for acts of within em- employee acting scoрe of ployment, Schaap, Wyo., Gill v. 601 P.2d (1979); Company, Miller v. Reiman-Wuerth Wyo., Combined Insur- Sinclair, Wyo., ance Company of America v. and v. Mor- Stockwell ris, ‍‌‌‌​‌‌​​​​‌‌‌​‌​‌​​​​​​​‌​​‌‌‌​​​‌​‌​​​​​‌​‌‌​​‌‍1,Wyo. We not, however, had occasion to rule employer may responsi- whether an be held ble employee. for the tort of an intentional rule, The majority universally fact Brown, Claude W. Drew, Martin of Apos- accepted rule, employers liable for the holds tólos, Sullivan, Massey Caspеr, & on behalf of employees intentional torts committed appellant. Prosser, within scope employment. Torts, ed., 1971). Law p. (4th James R. McCarty, Casper, on behalf of § appellee. The rule is a matter eсonomic and social policy, based on the fact em- both that the ROSE, J., RAPER, Before C. and THOM- ployer has the to control right employ- AS, BROWN, ROONEY and JJ. ee’s actions best and that can bear the loss a cost of doing as business. BROWN, Justice. (Second), The 2d Agency Restatement Appellant, Sage Club, appeals The a (1958), phrases p. 537 as: § rule judgment entered against it in a lawsuit subject “A liability master is arising out of an altercation between a bar- intended harm tortious a servant employed club, tender at the Mr. Thyfault, person things act or another customer, and a appellee David Leland done in connection with the servant’s Hunt. The trial court entered a default employment, although the act was unau- judgment against Thyfault Mr. and held thorized, unexpectable if the act was not Club liable under the theories of in view of the duties of the servant.” respondeat superior negligence in con- agree accepted We with the rule tinuing employ Thyfault. Appellant Mr. may hold that an employer be held liable asserts that it cannot be held liable for the for the tort of if employee intentional intentiоnal tort employee of its because the employee acting scope within the personal tort was Thyfault to Mr. and was employment. not within scope employment. We affirm. here contends Mr. that Thyfault aсting scope was not within the employment because altercation which dispute A took place money place Thy- which took one personal was a between oyer appellee had lеft on the bar. Appellee appellee. question fault and of wheth thought someone, supposedly Thyfault, employee acting er an within scope fact, had taken more money than he employment was entitled for the is one trier of to take for court, his drinks. Thyfault Mr. un- this case the trial becomes doubtedly insinuation, question resented the so he of law when one reasonable jumped over the bar appellee. аnd attacked inference the can be drawn about Thyfault appellee face, hit in the breaking from the evidence. Miller v. Reiman-

Ifíg general Co., injury long type as as the con 23. We think the supra, Wuerth at reasonably may expected. was sufficient to show that have been evidence here duct Waldron, 418 N.Y. scope of Riviello N.Y.2d Thyfault acting within 391 N.E.2d 1278 Some appellee. when he attacked S.2d employment most frequent grogshoрs are of who We said in ‍‌‌‌​‌‌​​​​‌‌‌​‌​‌​​​​​​​‌​​‌‌‌​​​‌​‌​​​​​‌​‌‌​​‌‍Insurance Co. Combined em society. Where an Sinclair, docile members supra, America v. in of serving type is this environ ployee is the general the servant’s conduct within bartender, usually a master is ment as the employment, “if it the scope his is of temper loses his responsible employee if the employed perform, kind which was to he injures a the willfully patron and because substantially occurs within the authorized is in view of the servant’s result foreseeable actuated, space, is at limit time and and job. in part, by purpose least a to serve the master,” Prosser, Torts, su- citing Law of indulge not This court will therefore Here, (4th ed.). pra, p. Thyfault’s .461 Mr. nice distinctions to determine whether in drinks, collecting money duties included for per by excessive force was motivated the temper and he matter. lost his over that appellant’s reasons. It is misfortune sonal in keeping His duties also included order quarrelsome have and violent to hired a customers, removing disruptive the bar and a plaintiff who in turn attacked bartender apparently which tried to do Thyfault injury experienced on claims. collecting pushing appellee down the stairs. evidently Thyfault to use Appellant allowed discretion, perform he was force at his Stees, Appellant Lombardy relies on to ing employed work the kind he was (1956), 132 for the Colo. the perform. The assault occurred within proposition pure that since the assault was space was limits of time and authorized ly personal, scope it was not within the motivated, by a desire to partially, at least case, however, employment. In that the Sage is conse The Club. serve that in express evidence showed the vicariously liable to Mr. Hunt under quently any struction the bartender was that if to the doctrinе of got to was to be one too much drink he not served The had no further. bartender there II bouncer; did, authority Thyfault to act as a that Sage ruled The also trial court and his a as employment was of such nature negli- theory of was liable under a Club Indeed, contemplate the use of force. as an maintaining Thyfault in Mr. gence Sage the owner of The Club testified that already we affirmed employee. have Since Thyfault people sometimes had to remove we do respondeat superior, the basis of daily from the club on a basis. negligence. need to the issue of not address In in addition the facts set out Affirmed. Combined Insurance Co. of Ameriсa v. Sin clair, supra, important deciding factor in Justice, THOMAS, dissenting. principal’s liability agent’s a for his inten opinion of the court join in cannot tional is whether “the use force is torts instance, no though I have this even in unexpеctable by not master.” Restate con- accuracy disagreement with (Second), 228(l)(d), p. ment 504 Agency 2d § are set fact which there cepts law and employ Where nature join is that I cannot The sole reason fоrth. is ment such that the master contem must should my judgment servant, plate use of force been dismissed. master will held for the willful act liable dis- findings, the its other In addition to though had no servant even he court as follows: trict found knowledge place. act would take Club, Herr, Defendant, Sage Or.App. Jones “6. That the Defendant, Joe keeping fore employer negligent need not have had employee after he Thyfault seen the act as an precise or exact manner part displayed aggressive vicious and ror on the of the trial behavior court could have injuries and that are a Sage Plaintiff’s result become effective because The Club negligence. said would still have been liable based its independent negligence. Defendant, Club, “7. That the paragraph liable as ^[******] result Plaintiff 3 other than of said negligence. damages punitive damages listed in said at 28 “ * * * If In North Laramiе Land Co. v. Wyo. Wyo. it be made to P. 1022 201 P. 1022: (1921), appear Hoffman, to an appellate questions in- employer “9. If an negligent keep- are no im- longer any practical volved ing employee aggressive who exhibits portance to the will parties the case quarrelsome tendencies ‍‌‌‌​‌‌​​​​‌‌‌​‌​‌​​​​​​​‌​​‌‌‌​​​‌​‌​​​​​‌​‌‌​​‌‍and the em- merely be reviewed on merits to de- ployee assaults a customer on duty, while ” * * * pay termine who shall the costs. damages is liаble for result- ing the employer’s negligence.” from Houdesheldt, Druley Wyo. (1956), Court, respect P.2d 351 to the with findings In these the district stated questions posed appellees, two the there liability alternative basis for the of The 165, Wyo. said at 75 294 P.2d 351: Sage other Club than questions, “These while of academic in- appellant’s cannot read the into brief any potentially terest determinative upon findings attack these independent instances, requisite certain are not to ad- negligence. argument The tenor of the is judication of this case and need not be only that the respondeat doctrine of superi- or discussed.” justify does not the finding liability this appellant instance. While argu- at oral Frederick, In Wyo., Matter of 599 Estate of ment attacked sufficiency of the evi- 550, said, (1979), P.2d 558 the Court support dence to finding independent issues found to be moot: “ * * * negligence, that matter not addressed in While sharply these issues are appellant’s docketing statement. drawn, significant, no doubt some- intriguing, they what we conclude that docketing his appellant statement illusory purposes are for be- part of his adversarial “Statement of the Nature of Proceedings” injected cause of the mootness into this respect said with to the disposition our finding Case No. 5029. district court: “The Court Proper application below held principles оf the bartender judicial theory liable on the restraint to liability.” vicarious leads the conclusion No mention is independent made we should not here address these negligence opinion of The In stating Club. issues because our under the cir- “Questions Presented by Appeal” advisory only. cumstances would the appellant refers tort being Depart- House v. Wyoming Highway ment, committed the employee’s 1, “outside employ- Wyo. 66 ment.” The 49, brief which Aftоn, was submitted is Welch v. Town Wyo. 64 184 consistent with docketing (1947). Cf., statement. P.2d ex 593 State rel. of sufficiency issue Jones, of the evidence Wyo. 350, v. 157 Schwartz 61 P.2d support independent negligence on part (1945)." 993 of the employer was waived. Rоberts Con- Utilities, In Northern Inc. v. Public Service Vondriska, struction v. Company Wyo., 547 620 Wyoming, Wyo., Commission of P.2d P.2d Barber, 1171 Barber v. Wyo., (1980), published 140 in a (1960), P.2d 198 and the authorities order dismissing appeal said: cited therein. pending appeal “2. When oc- event case me therefore becomes one in curs which makes a determination of the which even if agreed the court had unnecessary with involved argument counsel’s respondeat about should be supe- dismissed. In the Matter rior no relief could have Frederick, been afforded to Wyo.1979, Estate of P.2d appellant, 558; judgment and no finding er- Wyoming Highway House v. 203 P.2d Department, Wyo.

762.” Corporation

In Reno Livestock Sun Oil (1981) ‍‌‌‌​‌‌​​​​‌‌‌​‌​‌​​​​​​​‌​​‌‌‌​​​‌​‌​​​​​‌​‌‌​​‌‍Wyo., 638 Company, P.2d

this court said:

“ * * * exists, controversy When no dеcid not consume their time

courts will cases to

ing questions nor decide moot Utilities, arise in the future. Northern Commission, Wyo.,

Inc. Public Service 1079, 1085(1980) cases there * * *” cited. point, at 638 P.2d later

The court 155, said:

“ * * * questions We will not decide being only

requisite adjudication and Casper

of academic interest. Wallace Service,

Adjustment Wyo., 500 P.2d

(1972).” I am that no attack persuaded

Because of lia-

mounted the alternative basis independent

bility in this which is the Club, my view

negligence of The it unnecessary it to determine the issue and illu-

presented by appeal was moot docketing statement

sory from the time

was filed. It is for these reasons

would hold that should

been dismissed rather than determined. Wyoming,

STATE of Interest of J,

C, D, and Minors.

B, (Respondent),

PLATTE COUNTY DEPARTMENT OF AND SOCIAL

PUBLIC ASSISTANCE

SERVICES, (Petitioner). Appellee

No. C-5.

Supreme Wyoming. Court of

Dec. 1981.

Case Details

Case Name: Sage Club v. Hunt

Court Name: Wyoming Supreme Court

Date Published: Dec 31, 1981

Citation: 638 P.2d 161

Docket Number: 5532

Court Abbreviation: Wyo.