Crelly v. The Missouri and Kansas Telephone Company

• Citation: 113 P. 386,84 Kan. 19
• Decision Date: 11 February 1911
• Docket Number: 16,680
• Parties: MATTIE CRELLY, Appellee, v. THE MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant
• Court: United States State Supreme Court of Kansas

113 P. 386

84 Kan. 19

MATTIE CRELLY, Appellee, v. THE MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant

No. 16,680

Supreme Court of Kansas

February 11, 1911

Decided January, 1911.

Appeal from Crawford district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT -- Scope of Servant's Employment -- Liability of Master to Third Parties -- Assault by Agent. A local manager of a telephone company demanded of an operator of the company, who was about to quit the service, that she sign a voucher for the compensation due her, and when she refused to sign the voucher he violently assaulted and beat her. Held, in an action brought by her against the telephone company to recover damages for the assault and resulting injuries, that the assault and use of force by the local manager to procure the signing of the voucher were not within the scope of his employment, and the telephone company was therefore not liable for his wrongful acts.

J. W Gleed, John L. Hunt, and D. E. Palmer, for the appellant.

J. J. Campbell, B. S. Gaitskill, and W. J. True, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by Mattie Crelly to recover damages from the Missouri and Kansas Telephone Company for injuries resulting from a violent assault made upon her by E. S. Casen, the local manager of the company at Pittsburg, Kan.

She alleges that Casen was local manager, with authority to supervise and control the business of the company at Pittsburg, including authority to employ and discharge the servants of the company in that office, including herself, as chief operator, and that on October 25, 1907, while she was in the employment of the company, Casen came into the office and commanded her to sign a salary voucher, which she declined to do until she could figure out the amount actually due her, and that after another demand and refusal he struck her upon the chest with great force and violence, then shoved her seven or eight feet and ordered her from the room; that as she left the room he struck her several blows on the back and shoulders, and would have pushed her down the stairway leading to the street but for the interference of other employees of the company.

The answer of the company was a general denial, and also that Casen was not authorized to do the acts complained of, and that if such acts were committed he did not act as its agent or servant. The averment that Casen was not acting for the company in assaulting and beating appellee, or with its authority, was verified.

The testimony of appellee, in a general way, sustained the allegations of her petition. It appeared that she had learned from the district manager at Joplin that she was to be discharged, and that shortly afterward, while she was preparing to leave, Casen asked her to sign the voucher. When she refused he struck her with his fist, and then she struck him with her umbrella, and following this he violently shoved her through a door, and she in turn kicked him. He continued to push and strike her until another employee interfered.

Among other special findings the following were returned:

"Ques. Did Casen assault Miss Crelly because she refused to sign the voucher? Ans. He did.

"Q. Were the plaintiff's injuries due to the assault occasioned and caused by her refusal to sign the voucher? A. Yes."

In a general verdict the jury awarded damages to appellee in the sum of $ 1470.

The telephone company appeals, and raises the question whether on the pleadings and the plaintiff's own testimony it can be held responsible for the assault of Casen upon appellee and liable for the resulting injuries. It is argued that, accepting her testimony as true, the assault of Casen had no necessary or legal relation to his authority from the company or his duty to it. The contention is that the assault, whatever may have been the occasion or provocation, did not tend to further any business or purpose of the company and was not one of the methods or things which came in the line of Casen's duty or any interest which he was employed to promote, and that the assault was a personal wrong of Casen, for which he alone is responsible.

The general rule is that the master is responsible for the acts of his servants done in the execution of the master's business and within the scope of his employment. It is not enough to exempt the master that the act is willful or malicious or in excess of the authority expressly conferred. If the tortious act is done while the servant is acting in behalf of his master and within the scope of his employment the master will be responsible, although the act may be willful and wanton. The act, as in this instance, may have been done while the servant was in the master's service; but, unless it was expressly or impliedly authorized, or within the scope of the employment, the servant alone is responsible. The question of difficulty is whether the wrongful act is within the scope of the employment, and the contrariety of judicial opinion in cases brought to our attention arises largely from the application of this test. Here Casen was in the employ of the company, and was acting for it when he asked appellee to sign the voucher; but did the obtaining of the signature to the voucher contemplate the use of any force, or can it be said that an assault had any natural or necessary relation to the authority conferred at the time of his employment? The case is quite similar in its facts to Hudson v. M. K. & T. Rly. Co., 16 Kan. 470. The third paragraph of the syllabus of that case reads:

"Where it appears that plaintiff was authorized to receive freight for certain parties, and in pursuance thereof went to the depot of defendant and there demanded the same of the agent who was in charge of the depot and authorized to receive and deliver freight, and while so demanding it the said agent made an assault upon him, and it does not appear that the said assault was made in ejecting or attempting to eject plaintiff from the depot, or in preventing or attempting to prevent him from committing any injury to the property of the defendant, or from transgressing any rules for the regulation of its depot and the transaction of its business, held, that it did not appear that the company was liable for the assault, and that only the agent who actually made it was liable."

In the course of the decision Mr. Justice Brewer tersely stated that "Trotter was employed to deliver freight; plaintiff came and demanded freight; Trotter replied to his demands with an assault. Was such assault in the course of Trotter's employment? Did it grow out of any services he was engaged in, or was it in the line of his duty? It seems to us that it was clearly disconnected therefrom, and a mere volunteer assault. True, the employment may have given the opportunity and occasion, but it was not an act which in any fair sense the...