Jones v. Elbert

• Decision Date: 01 August 1945
• Docket Number: 15762.
• Parties: JONES v. ELBERT et al.
• Court: South Carolina Supreme Court

34 S.E.2d 796

211 S.C. 553

JONES v. ELBERT et al.

No. 15762.

Supreme Court of South Carolina

August 1, 1945

Williams & Busbee, of Aiken, for appellant.

Hendersons & Salley, of Aiken, for respondents.

BAKER Chief Justice.

This is an action in tort for damages, actual and punitive, alleged to have been suffered by the appellant when the respondent Martin, the general manager of a dairy and farm owned and operated by his co-respondent, Mrs. Elbert, on the 15th day of March, 1942, committed assaults and batteries upon him.

Upon a trial of the case, the trial Judge directed a verdict in favor of Mrs. Elbert, but submitted the issues to the jury as to Martin. The jury rendered a verdict in favor of appellant for $200 actual damages and $200 punitive damages against this respondent.

The appellant alleges error by the presiding Judge (1) in his conduct of the trial by reason of taking part in the examination of the appellant while he was on the witness stand; (2) in directing a verdict for the respondent, Mrs Elbert; (3) in his charge to the jury; and (4) in overruling motion for a new trial.

We will first pass upon the alleged error in directing a verdict in favor of Mrs. Elbert, which requires a summary of the testimony on behalf of plaintiff-appellant.

The respondent, Mrs. Elbert, is, or was at the time hereinafter referred to, the owner of Aiken Guernsey Farm, and her co-respondent, Thomas L. Martin, was the general manager of this dairy and farm. Prior to March 15, 1942 (the date of the alleged assaults and batteries), Mrs. Elbert decided to equip her dairy with a modern refrigerating plant for the preservation of milk and dairy products. Mr. Martin representing Mrs. Elbert, entered into the contracts therefor, and paid the contractors. The contract for the refrigerating system was let to Jones-George Electric Company, of which appellant, W. O. Jones, was principal owner and general manager; and the contract for the plumbing in connection therewith was let to a Mr. George, who had no connection with Jones-George Electric Company.

The plant as installed did not work satisfactorily. Complaints were made to Jones-George Electric Company, and on two or more occasions prior to the incident out of which this action arose this company had sent its representatives or employees out to the farm for the purpose of ascertaining and removing or remedying the cause, but to no avail. On the night of March 14, 1942, Martin 'phoned to Jones (the respondent) and requested that he come out and correct the defect or trouble, and Jones promised that he would be out the next morning (Sunday morning, March 15.) In accord with his promise, the respondent and two of his employees went to the dairy, and upon an examination reached the conclusion, as stated by Jones, that the defect and trouble was in the plumbing for that one-half inch pipe had been installed instead of one-inch pipe, and therefore the water inlet was too small to cool the machinery. Martin chanced to go into the dairy while Jones and his men were there, and when Jones informed Martin that the fault was in the plumbing, and 'to call in his plumber,' a dispute arose between them as to whose duty it was to correct the plumbing, each using the expletive 'damn,' resulting in Martin then and there 'with all his might' striking Jones in the face and otherwise manhandling him. They were separated by the employees of Jones-George Electric Company and by a Mr. Connelley, an employee of the dairy in charge of the equipment.

Within a very short span of time thereafter (the record does not disclose even an estimate), Jones, while still in the dairy said to Martin, 'I have always been able to settle my differences in a gentlemanly manner.' Martin replied, 'Then you mean to say I am not a gentleman.' Jones replied, 'That is exactly what I mean.' Martin then said, 'You haven't got enough, have you?' and he immediately started hitting at Jones, who hit back at Martin and slipped on the wet floor to his hands and knees, and while attempting to get up, was hit a severe blow on the side of his face by Martin. (Except for the statement of Martin, to wit, 'You haven't got enough, have you?' we would be inclined to hold as a matter of law that as to the second assault and battery, Martin was acting to resent what he considered a personal affront, and that he was not acting in the scope of his authority.)

In stating the facts, we have, of course, stated them most favorably to the respondent, in fact almost entirely from the testimony of the respondent himself.

The appellant seeks to recover against Mrs. Elbert on the principle of respondeat superior. 'The reason which has supported the principle of respondeat superior, based upon the judicial interpretation and declaration of public policy, is that the principal, selecting his agent and directing the manner in which he shall execute the agency, should in justice to third persons with whom the agent may deal, and who are not responsible either for his selection or conduct, be held liable for his torts.' Sams v. Arthur, 135 S.C. 123, 133 S.E. 205, 208.

In Cantrell v. Claussen's Bakery, 172 S.C. 490, 174 S.E. 438, 440, the Court stated:

'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. If there is doubt as to whether or not the servant, in injuring a third person, was acting at the time within the scope of his authority, the doubt will be resolved against the master, at least to the extent of requiring the question to be submitted to the jury for determination.'

The case of Lazar v. Great A. & P. Tea Co. et al., 197 S.C. 74, 14 S.E.2d 560, is analogous to this case. Lazar conducted a small grocery store. He saw one of his customers, to whom he had extended credit, coming out of the A. & P. store with bundles, and reproached this customer for trading with another without paying him. The customer claimed that he had bought goods for another. Lazar entered the A. & P. store and inquired of a clerk therein if the customer's statement was true. He then left the A. & P. store and returned to his own place of business. Soon thereafter, after, Small, the manager of the A. & P. store, appeared on the sidewalk at Lazar's store and called Lazar out and charged him with interfering with the customers of the store of which he (Small) was manager. An argument ensued and Small committed an assault and battery upon Lazar.

Under the foregoing statement of facts, this Court held that it was a question for the jury whether Small was acting within the scope of his employment as manager of the A. & P. store at the time he committed the assault and battery on Lazar.

In Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17, 19, it is stated:

'We have held in numerous cases that if there is doubt as to whether the servant in injuring a third person was acting at the time within the scope of his authority, the doubt will be resolved against the master at least to the extent of requiring the question to be submitted to the jury for determination. Hyde v. Southern Grocery Stores, 197 S.C. 263, 15 S.E.2d 353; Cantrell v. Claussen's Bakery, 172 S.C. 490, 174 S.E. 438; Matheson v. American Telephone & Telegraph Co., 137 S.C. 227, 135 S.E. 306.

'Under the doctrine of respondeat superior, it is generally held that the master is liable for the wrongful acts of his servant while acting as such within the scope of his employment. The principle is adhered to that an act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and is in furtherance of the master's business. Lazar v. Great Atlantic & Pacific Tea Co., 197 S.C. 74, 14 S.E.2d 560; Holder v. Haynes, 193 S.C. 176, 7 S.E.2d 833.'

All of the foregoing cited cases are in line with the old, but frequently cited, case of Polatty v. Charleston and Western Carolina Railway, 67 S.C. 391, 45 S.E. 932, 100 Am.St.Rep. 750.

Applying the established law in this State to the facts as testified to by the appellant and his witnesses, it was the duty of the trial Judge to submit to the jury for its determination the issue whether at the time or times Martin, the general manager of Mrs. Elbert's dairy and farm, struck the appellant, he was acting within the scope of his employment and in furtherance of her business; and it was error for the Court to conclude as a matter of law that Martin was not so acting, and direct a verdict in favor of the respondent Mrs. Elbert.

'Judges shall not charge juries in respect to matters of fact, but shall declare the law.' Section 26, Article 5 of the Constitution of 1895.

In construing this section of the Constitution, this Court has on numerous occasions held 'that, not only must the formal charge to the jury be kept free from any statement of facts in issue or expression as to the weight and sufficiency of evidence * * *, but it has frequently been held that a trial Judge should not by the interrogation of witnesses, by remarks in ruling upon evidence offered, or by comment upon the facts in relation to...