Kuhl v. U.S. Health & Accident Ins. Co. of Saginaw, Mich.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: JAGGARD
• Citation: 112 Minn. 197,127 N.W. 628
• Parties: KUHL v. UNITED STATES HEALTH & ACCIDENT INS. CO. OF SAGINAW, MICH.
• Decision Date: 09 September 1910

112 Minn. 197
127 N.W. 628

KUHL
v.
UNITED STATES HEALTH & ACCIDENT INS. CO. OF SAGINAW, MICH.

Supreme Court of Minnesota.

Sept. 9, 1910.

Appeal from District Court, Ramsey County; William Louis Kelly, Judge.

Action by Julius L. Kuhl against the United States Health & Accident Insurance Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Syllabus by the Court

A demurrer to a complaint seeking to charge the master with liability for a slander published by the servant ‘in the course and in the scope of his employment’ is overruled, without expression of opinion on the merits.

[127 N.W. 628]

John P. Kyle and James Mattimore, for appellant.

Lawler & Lyons, for respondent.

JAGGARD, J.

Plaintiff and appellant brought this action against defendant and respondent insurance company to recover damages because of the publication of certain words by its agent and servant, who was then ‘acting in the course of his employment’ and who was then ‘actually transacting the business of said defendant with its policy holders therein within the scope of his employment.’ Defendant demurred. The trial court sustained the demurrer. This appeal was taken from its order to that effect.

The objections to the complaint were that the allegation of utterance by the defendant acting in the scope and course of his employment was an allegation of a conclusion of law and not of an issue of fact, that the slander did not appear to have been authorized or ratified by defendant, and that the complaint did not set forth the circumstances out of which the alleged slander arose, nor any facts showing a duty owed by defendant to plaintiff.

We are clear that the order must be reversed. The terms ‘scope of employment’ and ‘course of employment’ are now generally regarded as conclusions of fact, like ‘negligence.’ Under current liberal rules of pleading, the complaint contained an allegation sufficient on this point to justify the admission of evidence. It is wholly immaterial that neither the original authority nor subsequent ratification by the master appeared. The liability of a master for certain torts done by his servant in course of the employment

[127 N.W. 629]

may exist, in the absence of any authorization or ratification. It was not necessary, as against a demurrer, to state the particular circumstances under which the slander was published, in order to make the master responsible therefor. If plaintiff wanted more definite information, the...