Cantrell v. Claussen's Bakery

• Decision Date: 04 May 1934
• Docket Number: 13843.
• Parties: CANTRELL v. CLAUSSEN'S BAKERY et al.
• Court: South Carolina Supreme Court

174 S.E. 438

172 S.C. 490

CANTRELL v. CLAUSSEN'S BAKERY et al.

No. 13843.

Supreme Court of South Carolina

May 4, 1934

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by Lawrence H. Cantrell against Claussen's Bakery and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Thomas Lumpkin & Cain, of Columbia, and Alan Johnstone, of Newberry for appellants.

Cooper & Maher and C. T. Graydon, all of Columbia, for respondent.

BLEASE Chief Justice.

The respondent, Cantrell, an employee of Taylor's Bakery, was engaged in the business of selling products of his employer bread, cakes, etc., and operated an automobile truck for the purpose of making sales and deliveries. The appellant Emerson was engaged in a similar service for his codefendant, Claussen's Bakery. Both bakeries sold bread to the store of Mr. Ott, which was placed upon a common rack in the store for display purposes.

The appellant Emerson, on a certain day, discovered, as he claimed, that some of the Claussen bread, left by him in Ott's store, had been "thumbed"; that is, that the paper wrapping thereon had been broken and the bread indented by the finger or thumb of some person, making it unsalable. He took up the bread, placed it in the Claussen truck, which he was operating, and, evidently, sought out the respondent, whom he suspected was guilty of the damage to his employer's bread. He stopped the truck he was operating near where he saw the truck operated by Cantrell was parked. Cantrell came out of a store, where he had gone to deliver bread. Emerson called him across the street. He was asked by Emerson if he "worked" Ott's store, and he replied in the affirmative. Thereupon, according to Emerson's testimony, he showed the damaged bread to Cantrell, and asked if he had "punched the bread," and Cantrell replied in the negative. Emerson further testified: "I believe you did punch the bread. It looks to me like you did punch it and you are a d- liar if you say you didn't punch it. He said what are you going to do about it, and at that time I slapped him."

The respondent testified that when he was charged by Emerson with having injured the Claussen bread, he informed the accuser that he had not done so, and, without anything else occurring, he was assaulted, and severely beaten and bruised, and was knocked down to the pavement by Emerson.

The respondent sued Emerson and his employer, Claussen's Bakery, for damages, because of the alleged unlawful, wrongful, and willful assault and battery, and for the alleged wrongful and false charge that he had "thumbed" the bread of Claussen's Bakery. The case, tried in the county court of Richland county before his honor, Judge Whaley, resulted in a verdict and judgment in favor of the respondent against both of the appellants in the sum of $1,000 actual damages.

In the appeal, there are seven exceptions on the part of the appellant Claussen's Bakery, and four exceptions on the part of the appellant Emerson. Counsel for the appellants, however, say in their brief that all of these exceptions raise but three questions, one relating especially to Claussen's Bakery, and the other two to both the appellants.

In the first question submitted for our determination, it is claimed that the trial judge committed error in not granting the motion of the appellant Claussen's Bakery for a nonsuit, and a motion for a directed verdict in favor of that appellant, on the ground that the evidence showed that the alleged assault and battery, committed by Emerson, was without the actual scope of his authority as agent for Claussen's Bakery.

It is our opinion that both motions were properly refused. The answer of the defendants admitted that Emerson was an employee of Claussen's Bakery, for the purpose of selling and delivering products of that corporation. Emerson testified that his duties required him "to take charge of the Columbia-Sumter route and drive the truck over there and sell bread, and try to get new business and try to increase the old bread sales." He was paid a regular salary and also received commissions. At the time of the alleged assault and battery upon the respondent, he was engaged, as the evidence discloses, in operating the truck of his employer, for the purpose of the business in which his employer was engaged; it was his duty to take up the damaged bread; and from his testimony, it was his duty to protect the business and property of his employer.

In overruling the motion for nonsuit, the trial judge summed up the testimony very properly with a statement to the effect that there was evidence to show that Emerson "was Claussen's Bakery on wheels."

The appellant Claussen's Bakery, to sustain its position depends very much upon the decision of this court in the case of Simmons v. Okeetee Club, 86 S.C. 73, 68 S.E. 131, 132. Thomas, an agent and employee of Okeetee Club, shot the plaintiff, Simmons. The difficulty grew out of the cutting of a fence of the Okeetee Club by the plaintiff. The shooting of the...