Allertz v. Hankins
| Decision Date | 16 February 1918 |
| Docket Number | 19781 |
| Citation | 166 N.W. 608,102 Neb. 202 |
| Parties | LAWRENCE ALLERTZ, APPELLEE, v. LOU HANKINS; LEE BURROUGHS, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.
REVERSED.
John J Ledwith, for appellant.
John B Barnes, Clinton J. Campbell and Harry R. Ankeny, contra.
SEDGWICK, J. LETTON and ROSE, JJ., not sitting. HAMER, J., dissenting.
The defendant Burroughs was the proprietor of a restaurant in the city of Lincoln. The plaintiff and the defendant Hankins were in his employ in the restaurant. The plaintiff brought this action in the district court for Lancaster county against Hankins and Burroughs jointly to recover damages alleged to have been caused by an assault upon him by the defendant Hankins. He recovered a judgment against both of the defendants, and the defendant Burroughs has appealed.
The defendant Hankins contends that he acted in self-defense only, and that the plaintiff was responsible for his own injuries. As Hankins is not a party to this appeal, that question is not discussed in the briefs, and it is assumed for the purpose of this decision that Hankins assaulted the plaintiff, and that the evidence justifies the recovery against him.
The plaintiff insists that, although Burroughs was not at the time in the room where the assault occurred, he is liable for the acts of Hankins under the circumstances. Hankins was foreman for the defendant Burroughs, and, in Burroughs' absence, had charge of the business and control of the employees. He also acted as cook, and plaintiff was one of the waiters. The difficulty between Hankins and the plaintiff arose from the manner of the latter's service of some of the patrons of the restaurant. It is alleged, and we assume the jury were justified by the evidence in finding, that Hankins rebuked the plaintiff for his manner of performing the service, and, in anger and without cause, threw some articles, which were for use in the business, at plaintiff, which caused the plaintiff's injuries. It is suggested in the brief that Burroughs anticipated such conduct on Hankins' part and encouraged it, but the evidence wholly fails to warrant such a suggestion. It is contended that after the trouble Burroughs took the view that the plaintiff was at fault, and attempted to protect Hankins from prosecution or trouble on account thereof, but this evidence has no tendency to show that anything that Burroughs did could have been considered to have been the cause of the assault. The questions principally discussed in the briefs are: First, whether the act of Hankins in making this assault was within the scope of his employment or so connected with his duties as to make his employer responsible for his acts; and, second, whether Burroughs knew that Hankins was quarrelsome and vicious to such an extent as to make him a dangerous man in his position as foreman, and so was guilty of negligence in continuing him in such employment, which was the proximate cause of the plaintiff's injury.
Upon the first question the plaintiff quotes from the note in Goodloe v. Memphis & C. R. Co., 54 Am. St. Rep. 67, 89, (107 Ala. 233, 18 So. 166): "Whether a servant did a tortious act with a view to his master's service, or to serve a purpose of his own, is a question of fact for the jury." When the act complained of is within the scope of the agent's employment, the master may be liable if the servant did the act with a view to the service for which he was employed, although the master would not be liable if the servant at the time had some purpose of his own and not connected with his employment in doing the act, and when the question depends upon the purpose and intention of the servant, it becomes a question of fact for the jury. And the statement quoted, under such circumstances, would be accurate. A more complete statement and one of more general application is found in the quotation from Nelson Business College Co. v. Lloyd, 71 Am. St. Rep. 729 (60 Ohio St. 448, 54 N.E. 471): "In an action seeking to hold the master liable for an act of his servant, which, from its nature, is within his employment, the question is whether it was in fact done in the performance of his service to his master, or was done wholly for the purpose of injuring the plaintiff, and none other, that question must be determined by the jury." And this quotation suggests the vital question in this case. Was the act of Hankins in assaulting this plaintiff "from its nature within his employment?" If the nature and quality of the act is clearly shown without dispute in the evidence, the court must so determine, and not submit that question to the jury. When Burroughs authorized Hankins to act as foreman in his business, he gave him such authority over the persons there employed as he himself would possess under the same circumstances. It is said that Hankins had authority to direct the action of the employees, to rebuke them for misconduct, and even to discharge them from the employment altogether. If the evidence would justify the finding of such authority reposed in Hankins, it would not follow that he was authorized to commit violent assaults upon the employees, or that he was employed with a view to any such conduct on his part. In some cases, as in the employment of a street car conductor, the scope of the employment necessarily includes the proper use of force under some circumstances. If a drunken rowdy so conducts himself as to become dangerous to the passengers, it may become necessary to remove him from the car, and in such case to use necessary and proper force for that purpose is within the scope of the conductor's employment, so that his employer would be liable for a misuse of force or for unnecessary violence. There is some evidence that this foreman was expected to maintain decent order in the restaurant, and that he might even discharge an employee if necessary for that purpose. But there is no evidence in this record that would justify the finding that to use corporal punishment, or personal violence, was within the scope of his employment. Indeed, the proprietor himself had no such function, and could not delegate such powers.
There is some evidence that upon a former occasion Hankins and another employee had had difficulty which possibly resulted in blows, and that Hankins was still retained in the employment, but this fact of itself is not sufficient to establish contemplating any such action on the part of Hankins, or any reason to suppose that it would be repeated.
There is evidence from which perhaps it might be inferred that Hankins was a quarrelsome man, so much so that it might possibly be considered dangerous to place him in such a position. If the evidence shows that Burroughs was aware of this fact, it is much more clearly proved that this plaintiff was also aware of Hankins' disposition and practices.
The plaintiff contends that Burroughs is not now in a position to avail himself of the defense of assumption of risk on the part of plaintiff, because that defense was not pleaded in his answer. The statute (Rev. St. 1913, sec. 7712) provides: "The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, * * * when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." It has been the settled practice in this state that, "where the ends of justice seem to demand it, leave will be given in the supreme court to amend a petition so as to fully state the cause of action." Humphries v. Spafford, 14 Neb. 488, 16 N.W. 911. The statute quoted expressly applies "when the amendment does not change substantially the claim or defense," and the same rule must necessarily be applied to both "claim or defense."
The plaintiff's own evidence shows that he was familiar with the character and conduct of Hankins, and still continued in the employment without making any objection or complaint to the defendant Burroughs. He cannot, therefore, avail himself of this supposed negligence on the part of Burroughs.
The plaintiff has entirely failed to prove his cause of action against the defendant...
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