Hill v. McQueen

• Decision Date: 27 February 1951
• Docket Number: No. 33912,33912
• Citation: 204 Okla. 394,230 P.2d 483
• Parties: , 22 A.L.R.2d 1220 HILL et al. v. McQUEEN.
• Court: Oklahoma Supreme Court

Page 483

230 P.2d 483

204 Okla. 394, 22 A.L.R.2d 1220

HILL et al. v. McQUEEN.

No. 33912.

Supreme Court of Oklahoma.

Feb. 27, 1951.

Rehearing Denied April 10, 1951.

Second Petition for Rehearing Denied May 1, 1951.

Syllabus by the Court

1. A mercantile company as a general rule is not liable for an unlawful assault committed by its manager upon the person of a debtor of the company where, at the time thereof, the manager by virtue of his office was authorized to collect indebtedness owing the company and was without further authority other than the direction of the president of the company to contact the debtor and inquire of him concerning the indebtedness and his intention as to the payment thereof.

2. Where, after the jury has retired to consider its verdict, it requests the court through the bailiff to transmit to the jury room depositions in evidence, and it does not appear that such depositions were desired for a reason other than a difference between them as to the testimony therein, it is the duty of the trial court to advise the jury of the right afforded them by the statute and the method of its exercise. And, held: a summary denial of such request, without regard to whether there may be intrinsic merit therein, is prejudicial error.

Simons, Simons, Mitchell & Headrick, of Enid, for plaintiffs in error.

Maurice F. Ellison, of Tulsa, and Elam & Crowley, of Enid, for defendant in error.

GIBSON, Justice.

This action was brought by defendant in error, McQueen, against plaintiffs in error, L. C. Hill and Johnston Seed Company, a partnership, and the members thereof, to recover damages for personal injuries received in an assault and battery committed upon McQueen's person by Hill. Johnston Seed Company was engaged in the business of selling farm and garden seeds with its principal place of business at Enid, Oklahoma. Hill was its general manager and as such was authorized to make collections of indebtedness to the company. During 1944 and part of 1945 McQueen occupied a contractual relation with the company under which he would go into producing areas, assemble seeds and ship same to the company which would process the seed, sell and make distribution thereof. The relationship was severed in the year 1945 and, on a tentative or final settlement of accounts, McQueen executed his note to the company for approximately $4800. It was the question of the balance, if any, owing upon the note that occasioned the argument out of which the assault arose. The assault occurred on January 17, 1946, at the close of a meeting of Oklahoma Seedmen's Association held in Oklahoma City. McQueen was the secretary of the association and Hill, who attended the meeting as the representative of Johnston Seed Company, was elected president of the association. After the close of the meeting Hill approached McQueen and told him that the president of the Seed Company wanted him (Hill) to talk to him (McQueen) about the balance due on the note and to learn what he (McQueen) was going to do about it. McQueen told Hill that he had turned the matter over to one Ellison, his attorney, and that any further talk would have to be with his attorney. Angry words ensued, culminating in the assault. There is a conflict in the evidence as to who struck the first blow and as to the use of opprobrious language. On the trial of the action the jury rendered a verdict for plaintiff in the sum of $7500 against both defendants and the court awarded judgment thereon.

Johnston Seed Company first assigns error of court in overruling its motion for a directed verdict upon the ground that the commission of the assault was without the scope of Hill's authority as its agent.

In order to hold one responsible for the tort of another it must be made to appear by competent evidence not only that the relation of principal and agent existed but that the tortious act was committed in the course of the employment. Fairmont Creamery Co. v. Carsten et al., 175 Okl. 592, 55 P.2d 757; Crews v. Garber, 181 Okl. 373, 73 P.2d 855.

Herein the fact of the agency is established and the question in issue is whether, in contemplation of law, the assault was committed within the scope of the agent's authority.

Pertinent thereto there is said in Cooley on Torts (3rd ed.), Vol. 2, p. 1037: 'It is not, as a general rule, within the scope of the servant's comployment to commit an assault upon a third person and the master is not liable for such an assault, though committed while the servant was about his master's business.'

And as examples where the employer was held responsible for assaults committed by the agent there is further said in the same paragraph: '* * * But where a bar keeper assaulted a customer in order to collect pay for drinks, the master was held liable. So when the assault is made to protect the master's property from trespass or spoliation being at the time committed. And so in case of an assault upon passengers to whom the master owes the duty of safe carriage.'

The basis of the liability that obtained in such cases has been recognized by this court in Ada-Konawa Bridge Co. v. Cargo, 163 Okl. 122, 21 P.2d 1, where the employer was held liable to one who, while crossing a toll bridge, was shot by a servant who was employed to collect the tolls. And in Chicago, R. I. & P. Ry. Co. v. Radford, 36 Okl. 657, 129 P. 834, where the train auditor caused the arrest of a passenger refusing to pay the required fare. As expressive of the doctrine applied we approved the following statement made in Dixon v. Northern Pac. Ry. Co., 37 Wash. 310, 79 P. 943, 944, 68 L.R.A. 895; '* * * It is well settled generally that a railroad company is responsible in damages to a trespasser for torts committed upon him by a servant who, in the commission of the tort, is acting in the line of his employment and within the scope of his authority; not within the scope of his authority as applied to the commission of the tort, for no authority for such commission could be conferred, but within the scope of his authority to rightfully do the particular thing which he did do in a wrongful manner.'

The authority of the servant in each of those cases differs both in character and degree from that which obtained in the instant case. The payment of the toll in the one case and the fare in the other was a condition precedent to the enjoyment of a right or privilege. The duty of the employee in substance was to get the toll or fare or to withhold the enjoyment of the right or privilege. Successful performance involved immediate action of some kind in opposition to the will of the other and therefore was to be anticipated by the employer.

No such action can properly be contemplated as an incident to the exercise of ordinary authority to collect indebtedness. And, in absence of some additional authority contemplating extraordinary action, there exists no basis for holding such extraordinary action to be within...