Keller v. Gunn Supply Co.

• Decision Date: 28 November 1923
• Docket Number: 3984
• Citation: 220 P. 1063,62 Utah 501
• Court: Utah Supreme Court
• Parties: KELLER v. GUNN SUPPLY CO

220 P. 1063

62 Utah 501

KELLER v. GUNN SUPPLY CO

No. 3984

Supreme Court of Utah

November 28, 1923

Appeal from District Court, Second District, Weber County; George S Barker, Judge.

Action by M. F. Keller against the Gunn Supply Company.Judgment for defendant, and plaintiff appeals.

AFFIRMED.

Samuel C. Powell, of Ogden, and Marioneaux & Beck, of Salt Lake City, for appellant.

Wilson McCarthy, of Salt Lake City, for respondent.

FRICKJ. WEBER, C. J., and GIDEON, THURMAN, and CHERRY, JJ concur.

OPINION

FRICK, J.

The plaintiff commenced this action in the district court of Weber county to recover damages for personal injuries which he alleged he sustained on September 27, 1922, by being "struck on the top of the head with an ice pitcher" by one of defendant's employes while the latter was in the due course of his employment, and while plaintiff was eating a meal in defendant's eating car at Ogden, Utah.The defendant answered the complaint, in which, after making certain denials, it averred that an altercation occurred between the plaintiff and one C. E. Winters, an employe of the defendant, "but that this defendant was in no way responsible for such altercation, and that said acts and conduct on the part of said C. E. Winters were beyond and outside of the scope of his employment."How the altercation and the assault occurred is clearly reflected in a statement made by plaintiff on the 1st day of October following the altercation.After alluding to the "accident," as plaintiff puts it, he stated:

"Was sitting at table third place from end on northwest side of table on the eating car of Gunn Supply Company in Ogden Union Yards, located in north end of yards.Was in act of taking a piece of meat off a meat platter when C. E. Winters, a chef in the employ of Gunn Supply Company, came in, and, using profanity, asked me: 'Your're the who insulted my wife, aren't you?'In reply I answered, 'No, sir; I didn't talk to her.'At that C. E. Winters picked up a pitcher containing ice water and hit me on the head with it, the impact causing the meat platter to fall from my hands.This he repeated three times, when his wife called out: 'That isn't the fellow, Jack.'This occurred about 6 p. m. on September 27, 1922.(Signed)Melvin Keller."

The foregoing statement was addressed to "Mr. O. Kirkland, Chief Joint Inspector," who, the evidence disclosed, was employed as an inspector at the Union Depot at Ogden, Utah.The statement is in plaintiff's own handwriting.

There was with plaintiff at the time he was struck by Winters one Clarence L. Brinker, who also made a statement which is in his own handwriting.Mr. Brinker's statement is as follows:

"I was asking if they were going to serve meals there after October, and no one would answer, and I then turned to Mrs. Winters' mother and asked her, and she started to tell me, and her daughter spoke up and said No,' in a very disagreeable manner; and I said, 'Oh, thank you;' and she said, 'Don't get fresh;' and not another word was said.Mrs. Winters walked into the kitchen, and in a minute or two Mr. Winters walked in and started for my friend, Mr. Keller, who was across the table from me.He picked up a pitcher of water, and said, 'Are you the that insulted my wife?' and then struck him.When he struck him the pitcher fell out of his hand, and he grabbed another one and struck at him.Mr. Keller was knocked unconscious by the first blow.His wife then said, 'That isn't the one;' and he started around the table after me, grabbing a pitcher as he came.His wife got in his way, and succeeded in stopping him, and he stood behind her with the pitcher above his head, ready to strike me or throw it at me.Then he went to the kitchen, and I took care of Mr. Keller, taking him to Dee Hospital.

"(Signed)Clarence L. Brinker,

"Car Inspector, 3-11 Shift."

Both statements were introduced in evidence without objection, and we have here reproduced them because they were made when the occurrence was fresh in the minds of those making them, because they were made in the handwriting of those making them, and because they clearly reflect, in substance, at least, just what occurred, at the time of the injury, between plaintiff and Winters.

It is true that at the trial plaintiff's testimony is somewhat more favorable to himself, in that he attempts to make it appear that Winters inflicted the injury upon plaintiff because it was Winters' duty to maintain order in the eating car The evidence as a whole, however, does not bear out such a conclusion.Upon the contrary, it is clear that Winters committed a most brutal assault on the plaintiff, and in doing so was manifestly acting entirely outside of the scope of his employment, and because of some assumed grievance of his own against plaintiff, just as appears from the foregoing statements.

After the plaintiff had produced his evidence the court denied a motion for nonsuit, but after the defendant had produced its evidence and both sides had rested the court directed the jury to return a verdict for the defendant no cause of action.Plaintiff excepted to the instruction directing a verdict.Judgment was accordingly entered upon...