Crittenden v. Thompson-Walker Co., Inc.

• Citation: 288 S.C. 112,341 S.E.2d 385
• Decision Date: 13 November 1985
• Docket Number: No. 0641,THOMPSON-WALKER,0641
• Court: Court of Appeals of South Carolina
• Parties: Parnell CRITTENDEN, Respondent, v. TheCOMPANY, INC., Appellant. . Heard

Page 385

341 S.E.2d 385

288 S.C. 112

Parnell CRITTENDEN, Respondent, v. The THOMPSON-WALKER COMPANY, INC., Appellant.

No. 0641.

Court of Appeals of South Carolina.

Heard Nov. 13, 1985.

Decided Feb. 21, 1986.

Pledger M. Bishop, Jr., of Buist, Moore, Smythe & McGee, Charleston, for appellant.

John H. Douglas, of Douglas & Douglas and Gedney M. Howe III, Charleston, for respondent.

BELL, Judge:

Parnell Crittenden, Jr., commenced this action against the Thompson-Walker Company, Inc., for injuries resulting from an assault and battery by Bobby Welch, an employee of Thompson-Walker. The circuit court entered judgment against Thompson-Walker on a jury verdict of $75,000 actual damages. Thompson-Walker appeals. We affirm.

In January 1981, Crittenden contracted with Thompson-Walker to renovate a building he was leasing as a place of business for a retail store. Thompson-Walker worked on the building until February 27, 1981. Several days prior to completion of the renovation, Thompson-Walker sent Crittenden a final approximate statement for the work. On February 26, 1981, Crittenden and his father came from their home in Wilmington, North Carolina, to Charleston and conferred with William B. Thompson, the president of Thompson-Walker, concerning the final bill for the work. No payment was made at the conclusion of that meeting. The next day, Thompson called Crittenden at the store to inquire about payment. Crittenden stated the bill would not be paid that day and, without further explanation, told Thompson to discuss the matter with Crittenden's attorney.

Shortly thereafter, Thompson went to Crittenden's store to pursue the matter. Before leaving his office, he told Bobby Welch, the job foreman for the Crittenden contract, that Crittenden was not going to pay the final bill and that the work was at an end. Thompson then left alone in his car to go to Crittenden's store. When he arrived, Thompson went to a small office in the rear of the store where he discussed the matter with Crittenden and his father. During the course of the discussion, Welch entered the store with several workmen. Welch testified he had come to tell a painter to cease work on the building. He claimed he brought his men to collect tools which had been left at the store. However, upon arriving at the store, he went immediately to the rear office and, in the presence of Thompson, severely beat Crittenden until the latter agreed to pay the bill. Crittenden suffered bruises about his body and permanent injury to his left eye and cheek. As a result, he was hospitalized for six days, underwent surgery, and still experiences double vision and numbness in his face.

Crittenden's complaint stated three causes of action against Thompson-Walker: (1) that Thompson-Walker is vicariously liable for the acts of its servant, Welch, who was acting within the course and scope of his employment when the beating occurred; (2) that Thompson-Walker is vicariously liable for the acts of its president, Thompson, who aided and abetted Welch in the assault; and (3) that Thompson-Walker is liable for negligence in hiring Welch and in failing to supervise him prior to and during the assault. The circuit judge struck the claim for negligent hiring, but permitted the case to go to the jury on the remaining theories, including negligent supervision. As there is sufficient evidence to support the verdict on the first cause of action, we find it unnecessary to consider Thompson-Walker's exceptions relating to the second and third causes of action. See Anderson v. West, 270 S.C. 184, 241 S.E.2d 551 (1978); Gold Kist, Inc. v. Citizens & Southern National Bank of South Carolina, 286 S.C. 272, 333 S.E.2d 67 (Ct.App.1985).

I.

Thompson-Walker claims the evidence conclusively establishes that Welch acted outside the scope of his employment when he assaulted Crittenden. It appears this argument rests on a misunderstanding of the applicable rule of law.

Thompson-Walker relies on Section 228(1), Restatement (Second) of Agency to support its position. That section provides:

Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master; and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

Applying the Restatement test, Thompson-Walker contends Welch was not employed to collect the company's debts, but to supervise construction. Moreover, it argues, Welch's conduct was totally unexpectable by the company. Thus, as a matter of law, it argues, Welch was acting outside the scope of his employment when he beat Crittenden.

The difficulty with this analysis is that South Carolina has not adopted the Restatement rule. In Jamison v. Howard, 271 S.C. 385, 247 S.E.2d 450 (1978), appeal after remand, 275 S.C. 344, 271 S.E.2d 116 (1980), a majority of the Supreme Court rejected the Restatement rule in favor of the test applied in Jones v. Elbert, 211 S.C. 553, 34 S.E.2d 796 (1945). Under the latter test, it is not necessary to find the particular act creating liability was within the servant's authority. Nor is it necessary that the assault should have been made as a means or for the purpose of performing the work the servant was employed to do. Carr v. William C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5 (1946); Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684 (1947). "If the servant is doing some act in furtherance of the master's business, he will be regarded as acting within the scope of his employment, although he may exceed his authority." Jones v. Elbert, supra, 211 S.C. at 558, 34 S.E.2d at 798-799, quoting Cantrell v. Claussen's Bakery, 172 S.C. 490, 494, 174 S.E. 438, 440 (1934); cf., Jamison v. Howard, supra, (master testified that servant had no authority to make credit sales or to collect business debts). On the other hand, if the servant acts for some independent purpose of his own, wholly disconnected with the furtherance of his master's business, his conduct falls outside the scope of his employment....