Kornec v. Mike Horse Mining & Milling Co.

Citation180 P.2d 252,120 Mont. 1
Decision Date15 April 1947
Docket Number8657.
PartiesKORNEC v. MIKE HORSE MINING & MILLING CO. et al.
CourtUnited States State Supreme Court of Montana

Rehearing Denied May 23, 1947.

Appeal from District Court, First Judicial District, Lewis and Clark County; A. J. Horsky, Judge.

Action by Sam Kornec against Mike Horse Mining and Milling Company and Lee Marty for assault and battery. On death of plaintiff Eula M. Kornec, administrator of the estate of Sam Kornec deceased, was substituted as plaintiff. From a judgment for plaintiff for $5,000, the defendants appeal.

Judgment affirmed.

Wellington D. Rankin and Arthur P. Acher, both of Helena, for appellants.

Floyd O. Small, Ralph J. Anderson and Albert C. Angstman, all of Helena, for respondent.

METCALF Justice.

This is an action to recover damages for injuries sustained as a result of an alleged assault and battery. Plaintiff and respondent, Sam Kornec, alleged that on March 30, 1943, which he was in and upon his own mining claims and near the boundary line between his property and that of defendant Mike Horse Mining and Milling Company, the defendant Lee Marty, a servant, agent and employee of the Mike Horse Mining and Milling Company, 'acting in the course of his employment' and without cause or provocation, committed an assault and battery upon the plaintiff. The jury found in favor of the plaintiff and awarded compensatory damages in the sum of $5,000. From this judgment the defendants appeal.

At all stages counsel for the defendant Mike Horse Mining and Milling Company have earnestly contended that the action of Marty in assaulting the plaintiff was a personal and independent act and not binding upon his employer. A general demurrer was interposed and error is assigned for the trial court's action in overruling the demurrer. It is insistent that allegations in the complaint that the acts were committed 'maliciously and wantonly' by Marty who was employed as a miner and general laborer, presumptively show an independent tort for which the employer was not liable. The complaint also states that Marty was acting in the 'course of his employment' and 'for and on behalf of and in the employ and pay of' and 'under the direction and instructions of said defendant company and its managing agents.' The contention is that such allegation is a legal conclusion and in the absence of ultimate facts pleaded from which course of employment can be inferred, is insufficient to show legal liability on the part of defendant company. Authorities may be found in some jurisdictions to support appellants' contentions (39 C.J. 1353, sec. 1577). However, the more liberal rule and the one that better conforms with our modern ideas of pleading is found in Kuhl v. United States Health & Accident Ins. Co., 112 Minn. 197, 127 N.W. 628. 'The terms 'scope of employment' and 'course of employment' are now generally regarded as conclusions of fact, * * *.' Under current liberal rules of pleading, a complaint containing such allegations is sufficient to justify the admission of evidence in support thereof.

In May v. Farrell, 94 Cal.App. 703, 271 P. 789, 792, the court cited Kuhl v. United States Health and Accident Ins. Co., supra, with approval and gave as one of the reasons for the rule the statement from Hains v. Parkersburg, M. & I, Railway Co., 71 W.Va. 453, 76 S.E. 843, 844. 'To require a specification * * * of * * * the particular duties with which' the servant 'is charged, would impose upon the plaintiff more than is necessary for the accomplishment of the office and purpose of the' complaint--a duty to allege matter lying peculiarly within the knowledge of the defendant and often beyond that of the plaintiff.'

Other cases supporting this view are Corey v. Beck, 58 Idaho 281, 72 P.2d 856, and cases cited therein 58 Idaho 281, 72 P.2d at page 859; Brown v. Union Bus Co., 61 Ga.App. 496, 6 S.E.2d 388; Southern Grocery Stores, Inc. v. Herring, 63 Ga.App. 267, 11 S.E.2d 57; and see Bancroft Ten Year Supp., Vol. 2, p. 878.

Under the better rule the allegation that the employee Marty was 'acting in the course of his employment' was a conclusion of fact good against a general demurrer.

At the conclusion of the plaintiff's case, counsel for defendants moved for a nonsuit upon the ground that the plaintiff had failed to prove that the defendant Marty was acting within the scope of his employment in the commission of the assault. This motion was overruled. A motion for a directed verdict on the same ground was made and denied at the conclusion of the evidence.

The record reveals that Kornec moved with his family to his present home on Beartrap Creek in 1940. His was the last house in Beartrap Gulch. The Mike Horse Mine was downstream on Beartrap Creek. In addition to his mining, Kornec maintained some livestock and had a barn and corral located about 20 feet from Beartrap Creek. In 1941, Kornec worked for the Mike Horse Mine for five months. He also worked about five months in 1942. On December 9, 1942, the manager of the Mike Horse Mine asked for permission to build a diversion dam on Kornec's property. Kornec indicated that he would grant permission if the Mike Horse would let him use a compressor. When permission to use the compressor was denied he refused to permit the Mike Horse Mining and Milling Company to lay pipes or construct a dam on his ground. That night Kornec was discharged from his employment with the Mike Horse Mine. On December 10, 1942, Kornec, the manager of the Mike Horse Mine, and the sheriff of Lewis and Clark county went over the ground, located the corners of Kornec's claim and 'agreed on the line.' About December 17, 1942, the dam was constructed and the defendant company started using the water from Beartrap Creek for the camp. The evidence is in conflict as to whether the dam was built 'right against the line' so that the water backed up and flooded Kornec's property or whether the dam was built 50 or 60 feet below the line. At the time the dam was built there was some discussion as to what would happen when high water flooded the road and witnesses for the defendants testified to threats made by Kornec while the dam was under construction.

The record shows that Kornec had had other difficulties with the officials and employees of the Mike Horse Mining and Milling Company. In September of 1942 an employee had blocked the road while laying pipe and Kornec was unable to pass. On another occasion the president of the company was stopped by Kornec and discussion as to the ownership of some property alleged to have been taken by a Mike Horse employee was had. The matter was settled when the president gave Kornec a check for the value of the property.

Immediately prior to March 30, 1942, Kornec complained that his children coming home from the Mike Horse school were wet to the waist from water that had overflowed the dam and flooded the road.

On March 29, 1943, the water supply at the Mike Horse camp failed and employees of the mine discovered that some boards in the spillway had washed away or had been removed. Temporary repairs were made on that day and while the repairs were being made Kornec appeared and protested about the work being done on the dam. The following day, March 30th the defendant Marty with his carpenter's helper and another laborer camp up to make permanent repairs on the dam. They worked without interference during the morning and in the afternoon Kornec appeared and remonstrated with Marty and complained that if the dam were rebuilt the water would wash out his road and bridge. According to his testimony, Kornec was standing on his own ground protesting that the dam would flood his road and wash out the bridge when Marty threatened him with a shovel and attacked him. Kornec retreated through the snow, Marty caught up and beat Kornec over the head and about the shoulders with the shovel. Kornec called to the two assistants to stop the fight but they did nothing and all the while Kornec continued to protest that Marty was on his ground. He further testified that Marty said 'I don't care whose ground--boss told me to kill you.' The fight continued until Kornec was back to his truck and Kornec then returned to his home.

The defendants tell a completely different story, their version being that Marty, at the time of the affray, was working on the dam and Kornec appeared, called him names and attacked him. Marty only used such force as was necessary to defend himself. Marty and Kornec clinched and rolled down the dam onto a pile of poles.

It is defendants' contention that Kornec's injuries, if any, were received when they both crashed into the poles. Marty states that he acted only in self defense and that he used no more force than was necessary. This conflict of evidence was, of course, for the jury to resolve and they have decided the issues in favor of the plaintiff.

It is well settled that a master is liable for the torts of his servant if committed within the scope of his employment. (Secs. 7965, 7966, Rev.Codes of 1935; Keller v. Safeway Stores, Inc., 111 Mont. 28, 108 P.2d 605, and cases cited therein.) Willful and malicious acts of the servant are imputable to the master under the same rule. (6 Labatt's Master & Servant, 2nd Ed., p. 6740 et seq.; Grorud v. Lossl, 48 Mont. 274, 136 P. 1069; Keller v. Safeway Stores, supra; 35 Am.Jur. 1006.)

Liability of the master is based on the principle of respondeat superior, that when the servant acts it is as if the master were acting. Various phrases have been used to qualify this concept. The servant or agent must have been acting in the 'course of his employment,' in 'furtherance of his employer's interest,' or 'for the benefit of his master,' 'in the scope of his employment,' etc. But a servant who acts...

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