Arkansas Natural Gas Company v. Lee

• Decision Date: 16 November 1914
• Docket Number: 238
• Parties: ARKANSAS NATURAL GAS COMPANY v. LEE
• Court: Arkansas Supreme Court

171 S.W. 93

115 Ark. 288

ARKANSAS NATURAL GAS COMPANY v. LEE

No. 238

Supreme Court of Arkansas

November 16, 1914

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause dismissed.

Moore Smith & Moore, for appellant.

1. The assault was not in furtherance of the master's business nor within the scope of the servant's employment. It was an independent tort. Wood on Master and Servant, §§ 279, 307; 75 A. 277; 60 Vt. 427; 13 A. 569; 93 Ark. 402; 97 Id. 24; 60 Vt. 427; 13 A. 569; 162 Mass. 319; 75 Ark. 579; 77 Id. 606; 20 Tex. 191; 95 Id 534; etc.

Henry Berger and Mehaffy, Reid & Mehaffy, for appellee.

Snyder and Bronsell were vice-principals charged with the duty of superintendence. Lee was under their direction and control. When Snyder ordered Lee to come from Malvern to inspect the work of Cook in the removal of the telephone, this was in the scope of Snyder's authority. The assault upon Lee by Bronsell, pursuant to a previous understanding with Snyder, was a mere continuation of the act of bringing Lee from Malvern and into the office of the company. The initial act which culminated in bringing Lee into the office of the company was, unquestionably upon the company's business and within the express authority of the superintendent, and this act was continued into the assault itself. The company is liable. 93 S.W. 598, 600; 106 S.W. 536; 104 S.W. 536; 70 L. R. A. 738, 740; 7 L. R. A. (N. S.) 929; 18 So. 922; 96 Ark. 365; 4 L. R. A. (N. S.) 506.

OPINION

MCCULLOCH, C. J.

The plaintiff, T. B. Lee, sues to recover compensation for personal injuries received while he was an employee of the defendant, Arkansas Natural Gas Company, and this is an appeal from a judgment in plaintiff's favor. Defendant was engaged in constructing a gas pipe line from the oil fields in Louisiana to the city of Little Rock, and plaintiff and one Bronsell were both employees of the defendant. Bronsell made an assault upon plaintiff at Hope, Arkansas, and inflicted serious personal injuries. Plaintiff was employed by the defendant as a superintendent of telephone construction, it being necessary, it seems, to operate a telephone along the line of construction of the gas pipe line; and plaintiff's department was a separate one from the construction department, in which Bronsell worked. The defendant was a foreign corporation and its business in Arkansas was in charge of one Dally, as general manager, who had general superintendence over all the business in the State, with sole authority to employ and discharge heads of departments. H. L. Snyder was general superintendent, with authority to look after the construction work, and Bronsell was his assistant. The evidence shows that Snyder or, in his absence, his assistant Bronsell, had authority to call upon or to make requisition upon plaintiff, as the superintendent of the telephone department, for work in the latter's department in aid of the construction of the pipe line. Neither Snyder nor Bronsell had any further authority over the plaintiff. They did not employ him and had no authority to discharge him.

The assault by Bronsell on plaintiff occurred on January 8, 1912. The evidence warrants a conclusion that there was ill feeling between the two men, or rather that Bronsell harbored ill feeling against the plaintiff for some time prior to the time the assault was committed. They had a conversation over the telephone a few days prior to the day of the assault, in which, according to the evidence adduced by the plaintiff, Bronsell threatened plaintiff with personal violence. This conversation occurred on January 5, while plaintiff was at Hot Springs and Bronsell at Malvern. On the night of January 7, Snyder called the plaintiff over the telephone at Malvern and requested him to come to Hope to inspect the work being done there by Cook, the plaintiff's assistant. Pursuant to that request, plaintiff went to Hope on the 8th and found Snyder and Bronsell together in the company's office. There is evidence to the effect that a few minutes before plaintiff entered the room a conversation between Snyder and Bronsell was overheard, in which they agreed that they would "get Lee down here and beat him up and he will leave the service of the company" and that they would thus get rid of him. Plaintiff passed through the room and immediately went to the room where Cook, his assistant, was at work removing the telephone, and Bronsell followed him into the room and assaulted him. The evidence on the part of the plaintiff tends to show that the assault was unprovoked and that very serious injuries were inflicted.

The court submitted the case to the jury upon the following instructions, given at the request of the plaintiff:

"1. You are instructed that an assault committed by an employee of a corporation in the course of his employment and for the purpose of advancing its interests and in pursuance of his agency is an act done within the scope of his employment for which such company will be liable, although it neither authorizes nor ratifies such act, and if you find from the evidence in this case that H. L. Snyder and W. F. Bronsell were superintendent and assistant superintendent, respectively, in charge of the management of the business of the defendant company at its office at Hope, Arkansas, and as such had control and direction of the work and employment of the plaintiff, Lee, and that his employment in the service of the company was objectionable to them, or either of them, as not being conducive to the interests of the company, and in order to induce him, or intimidate him, into voluntarily quitting the employ of the company, they conspired together and inveigled him into the office of the superintendent of the company and there, they, or either of them, in pursuance of such common purpose of causing him to quit the employment of the company, assaulted and beat the said plaintiff, the defendant would be responsible therefor, and your verdict shall be for the plaintiff."

"2. You are instructed that an employer who puts an agent in a place of trust and responsibility or commits to him the management of his business, is responsible when the agent or employee, acting within the scope of his authority, through lack of his judgment or discretion, or under the influence of passion, inflicts an unjustifiable assault upon another, even though he go beyond the strict line of his duty or authority."

"3. You are instructed that it is not necessary, in order to fix the liability of the defendant company, that Bronsell should, at the time of the injury, have been acting under the orders or directions of the company, or that the company should know that Bronsell was to do the particular act which produced the injury, if any, but it is sufficient if you find from the evidence that the act was within the scope of his employment, and, if so, the company is liable, though Bronsell acted wilfully and in direct violation of his orders."

It will be seen from these instructions that the theory of the plaintiff's counsel is that the defendant is liable because Snyder and Bronsell conspired together for the purpose of assaulting the plaintiff in order to force him out of the service of the company. This contention is, we think, wholly untenable, and according to the undisputed evidence in this case there is no liability fixed upon the company, either upon that or any other theory.

The principles of law upon which the master is responsible for injuries to his servant are elemental. Those applicable to the facts of this case have been stated in repeated decisions of this court.

In the case of Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S.W. 439, we said: "It will thus be seen that the test of a master's liability is not whether a given act was done during the existence of the servant's employment, but whether it was done while carrying out the object and purpose of the master's business; for if the act was done without authority and solely...