Bolwin v. El Kay Mfg. Co.
| Decision Date | 04 September 1975 |
| Docket Number | No. 60917,60917 |
| Citation | 336 N.E.2d 502,32 Ill.App.3d 138 |
| Parties | Earl BOLWIN, Plaintiff-Appellant, v. EL KAY MANUFACTURING COMPANY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Joseph B. Lederleitner, Steinberg, Burtker & Kages, Ltd., Chicago, for plaintiff-appellant.
Slovacek & Galliani, Chicago, for defendant-appellee.
This action was brought by Earl Bolwin to recover damages from the defendant, El Kay Manufacturing Company, for personal injuries suffered in an assault committed by Willie Davis, who was employed as a shipping checker by El Kay at the time of the incident. Bolwin was his only witness and after hearing his testimony, the trial court directed a verdict for the defendant, based upon its finding that the assult was outside the scope of Davis' employment.
Bolwin contends that his testimony concerning the shipping checker's assault whild he was loading his truck on the defendant's premises, was sufficient evidence to present a question of fact that should have been determined by the jury and, therefore, it was reversible error for the court to direct a verdict for the defendant.
Bolwin testified that he was a truck driver for Be-Mac Transportation and that on May 28, 1969, he was sent by his employer to El Kay Manufacturing Company to pick up a load of freight. When he arrived at El Kay around 1:30 in the afternoon, he was directed to back his empty trailer up to the loading dock. After doing this, he went to the shipping clerk's office where he presented a bill of lading, which listed the material he was to pick up. The bill was given to a checker. Bolwin stated that it was the customary job of a checker to go into the warehouse and retrieve the items listed on a bill of lading and to transport them to the loading dock so that they could be placed in trucks.
The checker who was assigned to his truck was unknown to Bolwin. The checker brought the freight to the loading dock on 4 4 wooden skids. Bolwin had emptied four or five skids into his trailer and had placed the empty skids next to his truck, when he heard a disturbance on the dock. he stated that as he left his trailer, some skids were being shoved around the dock and one landed near his truck. He asked the checker assigned to his truck what was taking place; and before he receive an answer the checker struck him on the right side of his face. Bolwin declared that he had said nothing to provoke the assault which he described as a 'spontaneous explosion.' As a result of the blow, he suffered a broken jaw and related dental injuries.
At the close of his testimony, Bolwin rested his case. The defendant also rested and both sides presented motions for a directed verdict.
The plaintiff asserts that the uncontradicted testimony establishes: that (1) he was lawfully on the defendant's premises at the time of the assault; (2) that he had been loading his truck with materials for ten minutes when he was struck by Davis, the defendant's employee, without provocation, and (3) that he and Davis were not acquainted with each other and there was no personal animosity between them. He argues that this evidence was sufficient to create a question of fact as to whether Davis was within the scope of his authority when he committed the assault and that this question should have been presented to the jury for determination.
The general rule is that a person, who is injured by the negligence of another individual, must seek his remedy for damages against the person who caused the injury. However, the doctrine of Respondeat superior is an exception to this rule of law. Under this exception, the negligence of the employee is imputable to the employer, if the relationship of principalagent existed at the time of and in respect to the transaction out of which the specific injury arose. Metzler v. Layton (1939), 373 Ill. 88, 25 N.E.2d 60.
However, it is of little consequence, that the negligent employee was usually the agent of his employer if, at the time of his tortious conduct toward the third party, the relationship of principal-agent...
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