Antinozzi v. A. Vincent Pepe Co.

• Decision Date: 23 May 1933
• Citation: Antinozzi v. A. Vincent Pepe Co., 117 Conn. 11, 166 A. 392 (Conn. 1933)
• Court: Connecticut Supreme Court
• Parties: ANTINOZZI v. A. VINCENT PEPE CO. et al.

166 A. 392

117 Conn. 11

ANTINOZZI v. A. VINCENT PEPE CO. et al.

Supreme Court of Errors of Connecticut.

May 23, 1933

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Action by Daniel Antinozzi against the A. Vincent Pepe Company and another, to recover damages for an assault and battery alleged to have been committed on the person of the plaintiff, tried to the jury.Verdict and judgment in favor of the plaintiff, and the defendants appeal.

No error.

Samuel Campner, of New Haven, for appellants.

John J. Sullivan, Jr., and Walter W. Walsh, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS Justice.

The defendant Pepe is the president of the A. Vincent Pepe Company, the other defendant, and on the day in question came to the place of business of the plaintiff for the purpose of collecting a bill of the Pepe Company.Pepe demanded payment of the bill which the plaintiff refused to make.An altercation followed in the course of which the plaintiff's left ankle was broken.The complaint alleged that Pepe threw the plaintiff to the ground with such violence that his ankle was broken, while upon the trial the plaintiff testified that his ankle was broken by kicks from Pepe as the two men were on the ground.One of the defendants' contentions, first made in this court, is that there was a material variance between the allegation and the proof as to the manner in which the plaintiff received the injury to his ankle.Even if it be granted that the variance between allegation and proof was a material one defendants cannot take advantage in this court of a claim to that effect which was not made in the court below.Chinigo v. Ehrenberg,112 Conn. 381, 383, 152 A 305.

The claim of the defendants chiefly stressed upon the argument was that the assault upon the plaintiff was not an act done in the execution of the business of the Pepe Company, and was not within the scope of the employment of the defendant Pepe.Defendants complain of the refusal of the court to comply with a number of their requests to charge in that connection, and also with its denial of their motion to set aside the verdict on the ground that the evidence of agency was not sufficient to justify a recovery against the corporation.The rule in this jurisdiction is in accord with that now generally accepted elsewhere, to the effect that the master is responsible for the willful torts as well as the negligent acts of his servant, done within the scope of his employment and with a view to the furtherance of the master's business.Son v. Hartford Ice Cream Co.,102 Conn. 696, 129 A. 778.The court charged the jury in the language of this court in Stone v. Hills,45 Conn. 44, 47, 29 Am.Rep. 635, that " for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the...