129 A. 778 | Conn. | 1925
The defendant is a manufacturer of ice-cream. Plaintiff, a shopkeeper, had for some time been receiving ice-cream delivered by defendant's truck driver, whose instructions were to collect the price on delivery. On the date in question, the plaintiff refused to receive the ice-cream, claiming that it was not properly iced. Defendant's servant insisted on leaving it, and when plaintiff refused to pay for it, undertook to take the price out of plaintiff's cash register. Plaintiff succeeded in locking the cash drawer of the register, and defendant's servant then *698 attempted to carry away the cash register bodily. This led to a struggle for its possession, in the course of which the plaintiff was kicked and severely beaten by defendant's truck driver and his helper. Defendant's instructions to this and other drivers were to use no force in making collections, but in case of dispute to call defendant's office.
The sole question on this appeal is whether, on the facts found, the defendant is liable in damages for the injuries thus inflicted on the plaintiff; defendant's claim being that, especially in view of the driver's disobedience of the defendant's order not to use violence, the assault was not an act done in the execution of the defendant's business and that it was not an act within the scope of the servant's employment.
The liability of a master to answer in damages for the consequences of his servant's torts may rest on one of three grounds, stated as follows in Stone v. Hills,
The earlier cases, including our own, held that a master was not liable for the wilful torts of his servants without proof of the master's assent or approval, on the ground that it would not be presumed without such proof that the commission of a wilful tort was an act done within the scope of the servant's employment.McManus v. Crickett, 1 East, 106; Wright v. Wilcox, 19 Wend. (N. Y.) 343; Church v. Mansfield,
On the other hand, it now seems plain enough that the liability of a master for his servant's torts is quite independent of the master's assent to or approval of the tortious act; and also that the rule of respondentsuperior is not explicable upon any theory which does not make it applicable to a wilful as well as to a negligent tort. It may be more difficult for a plaintiff to sustain the burden of proving that a wilful, as distinguished from a negligent, injury was inflicted while the servant was upon the master's business and acting within the scope of his employment; but when these conditions are shown to exist, there is no satisfactory reason for holding a master, who is himself free from fault, liable for his servant's lapses of judgment and attention, which does not also apply to the servant's lapses of temper and self-control.
Accordingly, the well-settled modern rule is that stated in Mott v. Consumers Ice Co.,
In the following cases cited on plaintiff's brief, the defendants were held liable in damages for assaults committed by servants: Gerstein v. C. F. Adams Co.,
Our own decisions have kept pace with this development of the law. The rule quoted from Stone v. Hills applies to "all acts done by a servant . . . in the execution of the master's business, within the scope of his employment."
In Murray v. Lehigh Valley R. Co.,
The defendant does not deny that a master may be liable for the wilful torts of his servant, but insists that in the case at bar the circumstances show that the defendant's servant was not, at the time of the assault, engaged in the defendant's business, and was not acting within the scope of his employment. In determining that question, "the test is to be found in the nature of the tortious act and its relation or nonrelation to that which the actor was employed to do."Turner v. American Dist. Tel. Mess. Co., supra, p. 713. When the servant is doing or attempting to do the very thing which he was directed to do, the master is liable, though the servant's method of doing it be wholly unauthorized or forbidden. "If the servant's disobedience of instructions will exonerate the master, *701
the proof, easily made, virtually does away with the maxim of respondeat superior." Duggins v. Watson,
Here the defendant's servant was instructed to collect for goods delivered, and the assault complained of grew out of his attempt to enforce payment by helping himself out of the plaintiff's cash register. What followed was a direct consequence of the servant's tortious method of performing the duty delegated to him. In Sturgis v. Kansas City Rys. Co. (Mo.)
So in the case at bar, the truck driver's attempt to collect out of the plaintiff's cash register precipitated a series of acts constituting one continuous transaction, and the beating occurred in the course of the servant's attempt to perform the business of the master.
There is no error.
In this opinion the other judges concurred.