Bryeans v. Chicago Mill & Lumber Co

• Decision Date: 21 January 1918
• Docket Number: 101
• Citation: 200 S.W. 1004,132 Ark. 282
• Parties: BRYEANS, ADMX., v. CHICAGO MILL & LUMBER CO
• Court: Arkansas Supreme Court

200 S.W. 1004

132 Ark. 282

BRYEANS, ADMX., v. CHICAGO MILL & LUMBER CO

No. 101

Supreme Court of Arkansas

January 21, 1918

Appeal from Crittenden Circuit Court; R. H. Dudley, Judge; reversed.

Judgment reversed and cause remanded.

J. T Coston, for appellant.

It was error to direct a verdict for appellee. The master was clearly liable as Breysacre was acting within the scope of his authority. The case should have been submitted to a jury. 42 Ark. 553; 58 Id. 386; 131 S.W. 971; 88 Id. 582; 6 Labatt, Master & S., § 2348; 93 S.W 600; 52 Id. 834; 18 So. 923; 122 N.W. 486; 58 S.E 609. The whole transaction was one and the same.

Coleman, Lewis & Cunningham, for appellee.

The court properly directed a verdict. The killing was not done within the scope of Breysacre's authority nor in furtherance of the master's business. It was a personal quarrel and encounter and Breysacher acted in self-defense. Labatt on Master & Servant, § 2288; 93 Ark. 403; 77 Id. 608; 115 Id. 288; 84 Id. 193; 32 F. 838; 143 N.C. 176; Labatt, M. & S., §§ 2276-2286; 69 Md. 257; 81 Ga. 485; 106 Ark. 115.

STATEMENT OF FACTS.

Appellant sued the appellee for damages alleged to have accrued to her by reason of the killing of her husband by one J. A. Breysacre, who, at the time of the killing, was in the employ of the appellee as superintendent of its box factory. The appellant alleged in her complaint that one of the rules of the company forbade "wood haulers and others to converse with, disturb or in any manner interfere with the laborers" employed by the appellee, and likewise forbade the laborers to converse with wood haulers or others who were not in the employ of the appellee; that it was the duty of the superintendent Breysacre to enforce this rule, and that while acting within the scope of his employment for the purpose of enforcing this rule he killed John Bryeans, the husband of the appellant.

Appellee denied that it had such a rule, and denied that Breysacre was acting within the scope of his employment when he killed Bryeans, and alleged that Breysacre killed Bryeans in a purely personal encounter, for which appellee was in no manner responsible.

Giving the testimony its strongest probative value in favor of the appellant, the facts are substantially as follows:

Lange had general supervision and control over all the employees. Shatz was next in authority, and Breysacre was next in authority to Shatz, and was the foreman and superintendent of appellee's box factory.

There was a rule of the company requiring the foreman or superintendent to look after his department and keep people from bothering the men while at work. The assistant superintendent was asked the following question: "Well, was Mr. Breysacre within his line of duty or not in telling Mr. Bryeans he would have to quit bothering the men in the factory--talking to them?" and answered, "Yes, sir."

Bryeans was authorized to haul kindling from appellee's box factory, and he was in front of the kindling platform when the killing took place. He had been authorized to haul, and had been hauling kindling from appellee's plant for several years. He had driven his wagon to the platform and was lifting it in position to dump the kindling into it, when. Breysacre said to him, "John, you will have to quit giving orders to that negro up there." The negro, at that time, was on the kindling platform in the act of dumping a load of kindling into the wagon. Bryeans said that "he had not been giving any orders to the negro." Breysacre replied, "Yes, you have; furthermore, you have been bothering the men in the shop. Every time you go by you bother Skinny Morgan, you stop and talk to him." Bryeans said he had not been bothering Skinny Morgan, and Breysacre again affirmed that he had. The two men by this time had become excited. When the dispute between them first started Bryeans had his gloves on and a smile on his face. After it had progressed some little time Bryeans seemed to be angry and the smile went off. He took his gloves off and laid them on the back end of the wagon and stepped away from the wagon. His face was flushed with anger. He ran his hands in his pockets and confronted Breysacre. The argument was then growing more heated all the time and Shatz got in between them. At that time they were close enough together for Shatz to put his hands on each of them and push them back. When Shatz thus separated them he said to Bryeans, "There was not any use in getting into any heated argument about the thing; that whatever Mr. Breysacre had told him he would have to abide by that." They stopped talking and Shatz backed away from them, thinking it was all over with. Just a second or so after Shatz stepped away from between them they started to talking again in a low voice, and finally Bryeans told Breysacre, in a loud and heated way, that he would have to see Mr. Lange about it, and they apparently got mad all over again. Breysacre said that Lange did not have anything to do with it. Bryeans then called Breysacre a G d liar and started towards him and pulled his knife out of his right hand pants' pocket. Breysacre called Bryeans a G d liar and the next thing was the shot, when Bryeans threw up his hands, placing them on his face over the place where the bullet struck, and turned to Shatz and said, "He has killed me." The whole thing happened quickly, and Bryeans died in a very short time.

There was some conflict in the testimony as to the exact attitude Bryeans was in at the time the pistol was fired, whether he had his hands in his pockets or down by his sides, but this testimony is not material to the issue here.

The court instructed the jury to return a verdict in favor of the appellee, which was done, and from a judgment in favor of the appellee against the appellant for costs and dismissing appellant's cause of action this appeal has been duly prosecuted.

WOOD, J. HART and SMITH, JJ., dissent.

OPINION

WOOD, J., (after stating the facts).

Whether or not Breysacre, at the time he killed Bryeans, was acting within the scope of his employment was an issue, under the evidence, for the jury to determine. While the evidence is undisputed, it can not be said that all reasonable minds would draw the same conclusion from it.

Giving the evidence its strongest probative value in favor of the appellant, which we must do in testing the ruling of the court directing a verdict against her, there was evidence to warrant the conclusion that Breysacre was acting within the line of his duty when he told Bryeans that he would have to quit giving orders to the negro up there and when he told him that he had been bothering the men in the shop; that this led to a controversy between Breysacre and Bryeans...