Awe v. Striker
| Decision Date | 26 October 1970 |
| Docket Number | Gen. No. 11142 |
| Citation | 129 Ill.App.2d 478,263 N.E.2d 345 |
| Parties | Russell AWE, Plaintiff-Appellant, v. Robert STRIKER, William Lessley, Al Kunz, doing business as Century 21 Shows, and Logan County Fair Association, a Corporation Organized Not For Pecuniary Profit, Under the Laws of the State of Illinois, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Daniel W. Handlin, Thomas F. Walsh, Lincoln, for plaintiff-appellant.
Harris & Harris, Lincoln, McConnell, Kennedy, McConnell & Morris, Peoria, for defendants-appellees.
Plaintiff filed a three-count suit to recover for personal injuries sustained from an assault and battery committed by the defendants, Striker and Lessley, which resulted in serious injuries and hospitalization. The first count was against the two personal defendants, the second count was against the defendant, Al Kunz, doing business as Century 21 Shows, and the third count was against Logan County Fair Association, the owner and operator of the fair. The trail court dismissed the second amended complaint in Count II and the second amended complaint in Count III for failure to state a cause of action and entered an appropriate judgment in bar against the plaintiff and in favor of the defendants, Al Kunz and Logan County Fair Association. The plaintiff appeals.
The individual defendants were apparently operating what is commonly referred to as a 'bottle game' at the Logan County Fair as employees of the defendant, Al Kunz. The midway at the fairgrounds had been rented by Kunz from the Logan County Fair Association. Plaintiff and his brother had played the bottle game after paying the necessary price and as is so frequently the case were unhappy with the results. Apparently as they turned away from this particular concession, plaintiff stated that the game was crooked and they ought to notify the sheriff. At this point, the individual defendants hollered 'Hey, Rube', the universal distress call of the carnival industry, and jumped upon the plaintiff with fists and a hammer breaking his leg in two places. Hospitalization resulted.
Even though a motion to dismiss a complaint admits all facts well pleaded in the complaint, the indispensable requirement of a complaint is that the allegations state a cause of action. McGill v. 830 S. Michigan Hotel, 68 Ill.App.2d 351, 216 N.E.2d 273. Obviously this rule also applies to facts appropriately alleged which would defeat a cause of action. While it may be properly stated that neither Count II against Kunz or Count III against the Logan County Fair Association properly establish facts proving a master and servant relationship of either with the two individual defendants, we do not deem it necessary to either discuss or determine this issue. For our purposes we assume without deciding that the master-servant relationship exists. Under such circumstances, an employer is liable to a third person on whom an assault and battery is wrongfully committed by his employee while acting within the scope and course of his employment. I.L.P. Employment, § 254. 'In order to render the employer liable, it is necessary that the tort-feasor was an employee, that such relationship existed at the time of the injury, and that such relationship existed with respect to the particular transaction from which the tort arose.' I.L.P. Employment, § 254; Shannessy v. Walgreen Co., 324 Ill.App. 590, 59 N.E.2d 330. An element of controlling significance in determining whether or not an assault was committed by a servant while acting within the scope of his employment is whether the business dealings of a master has been completed by the servant or the parties. 'The argument made is that if the master's business has been terminated, an assault made at such time is ipso facto one made as a result of some matter disconnected with a master's business, and thus cannot be said to be in pursuance of the master's interests or in the course or scope of the employment'. 34 A.L.R.2d, p. 436. A fair reading of the two counts of the complaint we consider suggests that the transactions leading to the injury were transactions taking place after the plaintiff and his brother had terminated their questionable enjoyment of the bottle game. In Hodson v. Great Atlantic & P. Tea Co. (1946, DCMo) 66 F.Supp. 514, where an employee committed an assault upon an intoxicated customer who had left the store without giving sufficient ration coupons and without fully paying for the goods and the store manager had recovered the food items and returned the money and the customer returned to the store and directed verbal abuse at the manager, it was held that the assault by the manager was not in connection with the employer's business, but after its termination, and was an attempt to avenge a personal insult, and hence the employer was not liable. To...
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