Dieas v. Associates Loan Co.
| Decision Date | 18 December 1957 |
| Citation | 99 So.2d 279 |
| Parties | Lester DIEAS, Appellant, v. ASSOCIATES LOAN COMPANY, a corporation, Appellee. |
| Court | Florida Supreme Court |
Clarence M. Wood and Luke G. Galant, Jacksonville, for appellant.
Jonn M. McNatt, Jacksonville, for appellee.
This is an appeal from a summary judgment in favor of the defendant in an action to recover damages for an alleged tort committed by an agent of the defendant upon the plaintiff. The complaint alleges, inter alia, that the defendant loan company, through its servant and employee, did unlawfully, wilfully and maliciously break and enter the front door of the plaintiff's residence, damaging the latch thereto and pulling it completely off and away from the door frame; that after such breaking and entering the agent of said defendant did unlawfully, wilfully and maliciously shake plaintiff severely by laying hands upon him, thereby awakening him from sleep, as a result of which he, the said plaintiff, was grievously startled, placed in fear of bodily harm and physically injured. It was further alleged in the complaint that the said agent was then and there upon the plaintiff's premises in furtherance of defendant's business in that his duties included the collections of monies for and on behalf of the defendant loan company and that said agent was at the time of the acts aforesaid attempting to collect money due the defendant by the plaintiff arising from a loan that defendant had made to the plaintiff in the normal course of business. The declaration claimed compensatory and punitive damages.
After a motion to dismiss the complaint had been denied, the defendant answered, admitting that the duties of the said agent included the collection of monies for the defendant and that, at the time mentioned in the complaint, the plaintiff's delinquent account had been assigned to the agent for adjustment, but denied the other allegations of the complaint. A second defense was interposed that 'the said [agent] was not authorized by the defendant to break and enter the residence of the plaintiff or to lay hands upon the plaintiff or to commit any trespass or do any unlawful act in connection with the collection of said account.' A motion to strike the second defense was made and denied. Interrogatories were propounded to the defendant and depositions were taken of the plaintiff and of the agent of the defendant. Thereafter defendant's motion for summary judgment on the interrogatories, depositions and pleadings was granted and summary judgment entered by the court.
The depositions and interrogatories establish that the agent of the defendant loan company was assigned the delinquent account of the plaintiff for adjustment, and that he was upon the premises of the plaintiff at the time alleged in the complaint for the purpose of effecting an adjustment thereof. There is some dispute in the record as to the force used in effecting the entry, but there is no question that the agent of the defendant loan company unlawfully entered the premises, committed the trespass referred to and assaulted the plaintiff. In his deposition, the agent of the loan company testified as follows:
Many cases have attacked the troublesome proposition of the liability of a master for the torts committed by his servant. 1 In Weiss v. Jacobson, Fla.1953, 62 So.2d 904, 906, the trial court dismissed the complaint for failure to state a cause of action, where plaintiff charged the employer with liability for an alleged negligent tort committed upon her person by the employer's dress clerk. We reversed, stating that in determining the master's liability the 'true criterion is whether that which the clerk did was something her employment contemplated' and not solely a question of the clerk's motive. 2 We further held that in the case then before us the above 'query can properly be resolved only at a trial upon the merits.' As in many other cases that have been before us on the subject of a master's liability for the torts of his servant, a party in the Weiss case relied upon the often-quoted opinion of Stinson v. Prevatt, 1922, 84 Fla. 416, 94 So. 656, 657, that the employer is liable if the wrongful act is done while the employee is acting within the scope of his apparent authority even though the act 'was not authorized by,...
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