Fleming v. Mills

• Decision Date: 05 March 1913
• Citation: 77 S.E. 309,161 N.C. 436
• Parties: FLEMING. v. TARBORO KNITTING MILLS.
• Court: North Carolina Supreme Court

77 S.E. 309

161 N.C. 436

FLEMING.

v.TARBORO KNITTING MILLS.

Supreme Court of North Carolina.

March 5, 1913.

1. Master and Servant (§ 332^*)—Injuries to Third Persons—Question for Jury-Scope of Servant's Employment.

Where the facts are admitted, or there is no conflicting evidence, and only one inference can be drawn, it is for the court to determine whether the act of a servant comes within the scope of his employment, but, where the facts are not admitted and the evidence is conflicting, the question is for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]

2. Master and Servant (§ 302*)—Injuries to Third Persons—Scope of Servant's Employment.

The test as to whether a foreman was acting within the scope of his employment when he assaulted plaintiff is whether the act was done in the furtherance of the employer's business.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*]

3. Master and Servant (§ 330*)—Assault by Servant—Evidence—Scope of Authority.

Evidence in a servant's action for damages for an assault by a foreman held sufficient to sustain a finding that the foreman at the time of the assault was acting within the scope of his employment.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.*]

4. Master and Servant (8 302*)—Assault by Foreman—Master's Liability—Scope of Authority.

A master is not responsible for wrongs done by a servant while not acting within the scope of his employment. Where a servant steps aside from the master's business to commit a wrong not connected therewith, the relation of master and servant is for the time suspended.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*]

Appeal from Superior Court, Pitt County; Cline, Judge.

Action by W. B. Fleming against the Tar-boro Knitting Mills. Judgment for plaintiff, and defendant appeals. Affirmed.

These issues were submitted:

"(1) Was the plaintiff unlawfully and wrongfully assaulted by the defendant John Mobley, as alleged in the complaint? Answer: Tes.

"(2) If so, was the defendant Mobley at the time acting within the scope of his employment as foreman of the knitting room of the defendant, the Tarboro Knitting Mills? Answer: Yes.

"(3) What damage, if any, is the plaintiff entitled to recover? Answer: Three thousand dollars."

The defendant Knitting Mills appealed.

John L. Bridgers and G. M. T. Fountain & Son, all of Tarboro, for appellant

Albion Dunn and Harry Skinner, both of Greenville, for appellee.

BROWN, J. There is abundant evidence that the defendant Mobley violently and wrongfully assaulted the plaintiff, and to justify the finding of the jury on the first issue.

The only question presented by this appeal and discussed on the argument is the liability of the Knitting Mills for Mobley's act, and that was submitted to the jury under the second issue.

Where the facts are admitted, or there is no conflicting evidence, and only one inference can be drawn, it is for the court to determine whether the act of a servant comes within the scope of his employment, or was done in the service of his employer. But where the facts are not admitted, and the evidence is conflicting, as in this case, the determination of the question is properly left to the jury. Daniels v. Railroad, 117 N. C. 592, 23 S. E. 327, 4 L. R. A. (N. S.) 485; Wood on Master and Servant, 594; Hussey v. Railroad, 98 N. C. 34, 3 S. E. 923, 2 Am. St. Rep. 312.

The test is, not whether Mobley was on duty at the time he assaulted plaintiff, but was the act done in the prosecution and furtherance of the defendant's business? Roberts v. Railroad, 143 N. C. 179, 55 S. E. 509, 8 L. R. A. (N. S.) 789, 10 Ann. Cas. 375; Daniel v. Railroad, 136 N. C. 527, 48 S. E. 816, 67 L. R. A. 455. 1 Ann. Cas. 718; Dover v. Manufacturing Co., 157 N. C. 324, 72 S. E. 1067.

The motion to nonsuit brings up for review the sufficiency of the evidence upon the second issue. The record shows that the plaintiff had been in the employment of the defendant Knitting Mills since February, 1909, and his duties were to run 18 knitting ribbing machines on the floor which was in charge of the defendant John Mobley, foreman. Mobley, foreman, had the authority to hire and discharge hands, and the immediate direction of the operation of all the machines on said floor. It is admitted by Mobley that one Campbell, another employs, came to him, and told him that plaintiff would not start up his machines; that he had broken off the needles. Mobley testified: "After that, Mr. Clark came to me, and told me he would not start the machines, and had left the machines and was throwing tops in the rack. I went to him, and asked him why he didn't start it up. He said he was keeping it running. I said, 'It doesn't seem so. It has been shut down for about three-quarters of an hour.' He said, 'If you say so, you are a damn liar.' I expected him to hit me, and I struck him in the face. We were both standing by the tank. He struck at me, and I dodged, and I struck him again, and we clinched and fell on the floor, and he choked me on the floor." There seems to be no difference in the evidence until Mobley accosted plaintiff about his work. As to what then occurred the plaintiff testifies: "I stopped to count up my work to see how many dozen I had made. I went around to the bin and counted up my work. He came around. I was looking over and counting. He said, 'What is the matter? Don't you want to run these machines?' I had 18 machines to work. I said, 'I reckon so; I have run them.' He said, 'You haven't half run them.' I said, 'I have done the best I can.' He said, 'If you don't want to run them, I wouldn't do it' I said, 'Just as you say. I will quit now. I have only two or three weeks more, and I will quit now.' He laughed, and said he didn't want me to quit. I said, 'If you want to talk, just wait a few minutes.' At that time I stooped down to get another bundle of tops, and, as I did, he struck me with a monkey-wrench, and hit me across the head, the back part, and struck me on the jaw. I threw up my head, and it glanced. I had to...