Fairbanks v. Boston Storage Warehouse Co.
| Decision Date | 27 November 1905 |
| Citation | 189 Mass. 419,75 N.E. 737 |
| Parties | FAIRBANKS v. BOSTON STORAGE WAREHOUSE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas.
W. Bartlett, E. R. Anderson, and A. T. Smith, for plaintiff.
P. H Cooney and F. L. Hayes, for defendant.
There was evidence which would have warranted a finding by the jury of an unjustifiable and wanton assault upon the plaintiff by Havender, who was the defendant's servant. But the question is whether the defendant is liable for it. The fact that Havender was in the employ of the defendant at the time when the assault was committed, and that the assault took place upon the defendant's premises, does not necessarily show that the defendant is liable therefor. 'An act done by a servant while engaged in his master's work, but not done as a means or for the purpose of performing that work is not to be deemed the act of the master.' Bowler v O'Connell, 162 Mass. 319, 320, 38 N.E. 498, 27 L. R. A. 173, 44 Am. St. Rep. 359; Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100, 52 Am. St. Rep. 523; Perlstein v. Am. Express Co., 177 Mass. 530, 59 N.E. 194, 52 L. R. A. 959. In the present case the uncontradicted evidence showed that the defendant's superintendent directed Havender to take the plaintiff up in the elevator, and that he did so and unlocked the room where the plaintiff's goods were stored, and then went back to the elevator; that the plaintiff went in and selected some goods which he wished to take away, and in a short time went to the elevator well and called to Havender to come up and get him; that he called two or three times with considerable waits between, and finally called to Havender and asked him to go out into the yard and get a man who had come with the plaintiff and take him in where it was warm; and that in about 10 minutes Havender came up with the man, and, as the elevator stopped at the landing, Havender stepped forward, leaving the man on the elevator, and grabbed and struck the plaintiff without any provocation, committing the assault complained of. Havender was not a witness, and it did not appear where he was. He was discharged by the defendant three days after the assault. There was nothing to show that down to the assault his conduct, while in the defendant's employ, had been otherwise than good. We do not see how it can be said that the assault was committed as a means or for the purpose of performing the work which Havender was employed to do.
The plaintiff, relying on the doctrine laid down in Bryant v Rich, 106 Mass. 180, 8 Am. Rep. 311, and similar cases, contends...
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