Barney v. Jewel Tea Co., Inc.,

• Decision Date: 14 July 1943
• Docket Number: 6504
• Citation: 104 Utah 292,139 P.2d 878
• Court: Utah Supreme Court
• Parties: BARNEY v. JEWEL TEA CO., Inc., et al

139 P.2d 878

104 Utah 292

BARNEY v. JEWEL TEA CO., Inc., et al

No. 6504

Supreme Court of Utah

July 14, 1943

Appeal from District Court, Fourth District, Utah County; Abe W Turner, Judge.

Action by Lucinda Barney against the Jewel Tea Company, Inc., and George A. Davis to recover compensatory and punitive damages for a battery committed by the individual defendant who was an agent of the defendant company. Judgment for plaintiff and defendants appeal.

Judgment as to Jewel Tea Company, Inc., reversed.

Fabian Clendenin, Moffat & Mabey, of Salt Lake City, for appellants.

John R. Hart and William Stanley Dunford, both of Provo, for respondent.

WADE Justice. LARSON, McDONOUGH, and MOFFAT, JJ., WOLFE, Chief Justice, concurring.

OPINION

WADE, Justice.

The Jewel Tea Company, Inc., is a corporation engaged in the business of selling merchandise. It conducts this business through agents who call at the homes of individuals for the purpose of selling its goods, which consist mostly of groceries. It has been the policy of this company as an inducement to its customers to purchase greater quantities of its products to offer premiums consisting principally of cooking utensils, sewing kits and other household items. These are sold to the customers for cash, or by a credit of approximately 20 per cent of the purchase price of the products sold, which credit is applied toward the payment of the premium.

George A. Davis was one of the agents of the Jewel Tea Co., Inc., from May, 1940, to September, 1941. His duties consisted of selling, delivering, and collecting for the company's merchandise and premiums. Among the territories which he served was Spanish Fork, Utah. Lucinda Barney, a resident of Spanish Fork, Utah, was one of the customers of the company whom he inherited from his predecessor. He also inherited the responsibility of collecting from her $ 4.45 which she owed for premiums. During the entire period of his dealings with her he sold her about $ 1.20 worth of groceries. These purchases were insufficient to pay for what she owed for the premiums. Davis tried to persuade her to buy more groceries but did not succeed. About March 1, 1941, Mrs. Barney and Davis had a dispute about the debt which she owed to the company. The result of the dispute was that Davis was requested not to call at the Barney home in the future. Arrangements were made whereby Mrs. Barney was to leave 25c every two weeks at the home of her mother who was also a customer of the Jewel Tea Co. These sums were to be applied on the payment of Mrs. Barney's account until it was liquidated. After one or two payments she failed to make any more and about May 21, 1941, Mr. Davis called at Mrs. Barney's home for the purpose of making further collections. Mrs. Barney did not take kindly to his coming and as a result of the melee which followed a suit was brought by Lucinda Barney as plaintiff against the Jewel Tea Co., Inc., and George A. Davis, as defendants, for battery committed by George A. Davis. The jury found in favor of plaintiff and awarded both compensatory and punitive damages. From this judgment defendants appeal.

The question to be determined is whether a principal is liable for compensatory damages for a battery committed by its agent at a time and place in which he is acting for his principal.

The evidence is undisputed that when Mr. Davis approached Mrs. Barney on May 21, 1941, he had his account book and pencil in his hand, and he met her in her front yard near a gate where she was watering some flowers with a hose. Also present at that time were her next door neighbor and her children. Polite greetings were exchanged. The evidence is conflicting as to what happened after this. The facts most favorable to respondent are these: Mr. Davis asked Mrs. Barney if she was going to pay or trade out the account. She replied that he had failed to receipt her for the payments which she had previously made and until he did this she would make no further payments. Mrs. Barney then turned her back on Mr. Davis and walked over to a rock garden. Mr. Davis followed her, hit her with his shoulder and precipitated her into the rock garden. She then turned the water hose on him. What followed was a general fracas in which epithets, fists, and a broom-stick played prominent parts. The broom-stick was wielded by Mrs. Barney with sufficient force and power to break in half in one of its encounters with Mr. Davis's back. At that auspicious moment a sister-in-law and neighbor of Mrs. Barney arrived and intervened. Mr. Davis then left the yard somewhat hurriedly. Having once left the premises he apparently changed his mind and started to come back. Mrs. Barney helped him to change his mind again by throwing a spike which pierced his trouserleg and wounded him. At this moment he saw the respondent's father and brother approaching and got into the Jewel Tea Company's truck and drove away, refusing to accept the invitation of her father and brother to come out and fight.

There was evidence that Mrs. Barney had been in poor health for a long time and that as a result of her illness she was more irritable and excitable than a person enjoying normally good health. At the time of the altercation her health had improved, but as a result of it she suffered a nervous relapse besides the physical injuries inflicted by appellant Davis.

From the above facts it is apparent Mr. Davis called on respondent for the purpose of collecting a debt which she owed to his employer, and also to induce her to buy its products, and that the call was made in pursuance of his duties.

The authorities are conflicting in circumstances similar to the instant case as to whether a principal is liable for compensatory damages for a tort committed by an agent. California and Oklahoma seem committed to the rule that the principal is liable for a tort committed by an agent where it is done during the course of his employment, even though the act does not tend to further the principal's interests and is not one which would ordinarily follow from the duties entrusted to the agent. See Andrews v. Seidner, 49 Cal.App.2d 427, 121 P.2d 863; Johnson v. Monson, 183 Cal. 149, 190 P. 635; Hunt-Murry Co. v. Gibson, 157 Okla. 112, 11 P.2d 123; Stansell et al. v. Safeway Stores, Inc., 44 Cal.App.2d 822, 113 P.2d 264.

We believe the better rule to be that a principal is not liable for the willful tort of an agent which is committed during the course of his employment unless it is committed in the furtherance of his employer's interests or unless the employment is such that the use of force could be contemplated in its accomplishment.

The case of Moskins Stores, Inc., v. DeHart, 217 Ind. 622, 29 N.E.2d 948, 949, is a well reasoned case discussing the above principles. The facts in that case are somewhat similar to the facts in the instant case. A collector for the defendant company became annoyed at the failure of a customer to pay an account and an altercation ensued. The court in analyzing the facts discussed the rules stated in Mechem on Agency, 2d Ed., Vol. 2, § 1978, pp. 1540-43, and the American Law Institute's Restatement of the Law of Agency, Vol. 1, § 245, pp. 547, 548, and said:

"It would seem that the rule laid down by Mechem and in the Restatement of the Law is based on sound principle; that a master is only liable for the use of force by a servant where the acts to be performed by the servant are of such a character that they are not uncommonly accompanied by the use of force, or where there was something in the employment indicating that the use of force was contemplated. It would seem, as indicated in the Restatement of the Law, that the collection of accounts does not ordinarily come within this class; and * * * something more than mere employment to collect accounts must be shown. * * *"

In the instant case it is true Davis's duties entailed selling and delivering as well as collecting, but there is nothing inherent in any of these duties which contemplate the use of force in its accomplishment. Neither can it be said that he furthered his employer's interests by the use of force. In doing so he not only failed in his mission to collect the company's debt, but succeeded instead, as the evidence disclosed, in losing for the company at least one other customer besides respondent.

Davis in committing the battery was venting his ire at an unpleasant situation created by respondent's insistence that she was not favorably impressed with his honesty and probity and demanding a receipt before she would make any further payments. Davis could have accomplished the object of his employment by giving a receipt. In Keller v. Gunn Supply Co., 62 Utah 501, 220 P. 1063, 1064, a case in which defendant's chef committed a battery for personal reasons on a patron at its place of business and during the course of his employment, we quoted with approval the following statement from Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A., N.S., 653:

"The act (of the servant) must be, not only within the scope of his employment, but also committed in the accomplishment of objects within the line of his duties, or in and about the business or duties assigned to him by his employer."

See, also, Kastrup v. Yellow Cab Co., 129 Kan. 398, 282 P. 742; Matsuda v. Hammond, 77 Wash. 120, 137 P. 328, 51 L.R.A., N.S., 920; Zucker v. Lannin Realty Co., 217 A.D. 487, 217 N.Y.S. 65; Moore v. Ford Motor Co., 265 Ky. 575, 97 S.W.2d 400; and Plotkin v. Northland Transp. Co., 204 Minn. 422, 283 N.W. 758.

We hold, therefore, that under the facts of this case the appellant Jewel Tea Co., Inc., is not liable for compensatory damages for the battery committed upon respondent by its agent. It follows therefore that it...