Collins v. Butler

• Decision Date: 05 August 1904
• Citation: 71 N.E. 746,179 N.Y. 156
• Parties: COLLINS v. BUTLER.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 156

71 N.E. 746

COLLINS

v.BUTLER.

Court of Appeals of New York.

Aug. 5, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Louisa Collins against James Butler. From a judgment of the Appellate Division (81 N. Y. Supp. 1074) affirming a judgment for plaintiff, defendant appeals. Reversed.

Bartlett, J., dissenting.

John H. Rogan, for appellant.

Edward Henry Harrison, for respondent.

O'BRIEN, J.

The plaintiff recovered a verdict against the defendant in an action for assault and battery. It seems that the defendant is the proprietor of several stores in Brooklyn where groceries, provisions, and other goods are sold. It is not alleged or claimed that the defendant himself committed the assault, or directed it, or was present, or knew anything about it. The difficulty, whatever it really was, took place in one of the defendant's stores between the plaintiff and one of the clerks. The defendant's answer contained a general denial, and the affirmative allegation ‘that, if any injuries were sustained by the plaintiff as alleged in said complaint, they were caused entirely by her fault and misconduct, and without the fault or misconduct of the defendant, his servants, agents, or employés.’

On the trial there was no dispute about the fact that the difficulty between the plaintiff and the clerk was in respect to a basket of apples which was marked, ‘Five cents.’ The plaintiff says that, having seen the apples outside the door, she went into the store and told the clerk she wanted them, laying down the five cents on the counter. The clerk went out, brought in a basket, and was about to deliver it, when he was informed by the boy outside the door that the plaintiff had, before entering the store, manipulated the apples in the basket by removing the small ones, and supplying their place with larger and better fruit. The clerk, on learning this, and inspecting the fruit himself, told the plaintiff she could not have them for five cents, and, as he says, the plaintiff commenced to call him names and abuse him. She indulged, as the proof tends to show, in loud talk and disorderly conduct. The clerk ordered her to leave the store and she refused, whereupon he laid his hands upon her and pushed her out of the door; using no more force than was necessary to remove her. Three disinterested witnesses who were present in the store at the time, and saw the transaction, testify substantially to these facts. The plaintiff herself was the only witness who testified to anything like an assault upon her by the clerk, or to any different version of what took place in the store at the time that the plaintiff claimed to have been assaulted.

The court below was not unanimous in the affirmance of the judgment, but the decision is nevertheless conclusive upon this court as to the facts, since there was at least some evidence upon which to base the verdict. The jury evidently believed the plaintiff's version of the transaction in the store, and rejected that of the three witnesses for the defendant, and hence the defendant's exceptions present the only questions of law open for review in this court. The issues in the case were issues of fact, and embrace two propositions or questions: (1) Was there any assault whatever committed on the plaintiff by the clerk? (2) If there was, did the clerk act within the scope of his duty and employment, in such a sense as to render the defendant responsible for the assault?

I think the difficulty with the case is that these two questions were decided in the plaintiff's favor by the court as questions of law, and not by the jury as questions of fact. The learned trial judge instructed the jury in the following terms: ‘The evidence on both sides shows distinctly that this clerk, William Malloy, did put his hand upon the person of this plaintiff, and did proceed to push her out, either forcibly, or, with such measure of power as was necessary for the occasion-out of the store-after having at least told her to go out, as two or three of the witnesses say. That was an assault, gentlemen, so that, there being no defense of justification, the plaintiff is entitled to recover some damages. The other question which has arisen in this case, as to whether this clerk was acting within the scope of his employment, may be solved in favor of the plaintiff. The proprietor of a store, who has subordinates under him, and who is not there personally to give his attention to the management and conduct of that store-who intrusts it to clerks, who may have one supervising clerk or manager to direct them all-is responsible to some extent, at least, for the conduct of those clerks in that store, as engaged in the management of his business; and anybody who comes into his store to buy goods from one of those clerks is entitled to reasonable protection from assault at the hands of one of those clerks, so far as that assault is made while he is negotiating a business transaction with a customer. Therefore this William Malloy was acting within the scope of his employment, and what he did was done with the apparent assent of other persons in the store. Nobody interfered, and this woman was ejected. When she got to the door, resisting to some extent, her hand was removed from the door, and she was pushed into the street. There is no evidence that anybody kicked her. The question is, therefore, simply one of compensation-what will you award her? She is entitled to damages for the pain and the suffering which she endured. She is entitled to compensation for the loss of her power to earn her daily wages.’ The defendant's counsel duly excepted to this part of the charge.

It will be seen from this language of the learned judge that the jury was instructed as to three propositions: (1) That the act of the clerk in pushing the plaintiff out of the store, after her refusal to go upon his request, was an unlawful interference by the clerk with the plaintiff's person, and, in law, an assault; (2) that the clerk, in doing this, acted within the scope of his duty and employment, and his acts could be imputed to the defendant; (3) that the only question for the jury was one of damages or compensation.

I think that the defendant was entitled to have all three of these questions submitted to the jury. When a party is sued for an assault and battery committed by his servant upon another, the liability must depend either upon proof of some express direction or authority of the master, or upon facts and circumstances from which a direction or authority of the master may be inferred, and that inference must be drawn by the jury as one of fact. This is the case of a clerk in a store, alleged to have committed an assault upon a...