Lane v. Modern Music, Inc.

Decision Date01 June 1964
Docket NumberNo. 18220,18220
Citation244 S.C. 299,136 S.E.2d 713
PartiesMildred J. LANE, Respondent, v. MODERN MUSIC, INC., Appellant.
CourtSouth Carolina Supreme Court

Willcox, Hardee, Houck, Palmer & O'Farrell, Florence, Hayes & Hayes, Dillon, for appellant.

William J. McLeod, Herbert Britt, Dillon, for respondent.

MOSS, Justice.

Mildred J. Lane, the respondent herein, instituted this action to recover damages for personal injuries alleged to have been sustained by her on December 16, 1957, as a proximate result of the negligent, willful, wanton and malicious acts of Modern Music, Inc., the appellant herein, committed by one W. B. Powell, its agent, servant or employee, while acting in the scope of his employment. A general denial was interposed by the appellant.

This case came on for trial before the Honorable T. B. Greneker, Presiding Judge, and a jury, at the 1962 February term of the Court of Common Pleas for Dillon County. At appropriate stages of the trial, the appellant moved for a nonsuit and a directed verdict upon the ground that Powell was not acting within the scope of his agency or employment in committing the acts which resulted in injury to the respondent. These motions were refused and the case was submitted to the jury, resulting in a verdict in favor of the respondent for actual damages. After the verdict was returned, appellant moved for judgment non obstante veredicto, or failing in that, for a new trial upon the same ground as was incorporated in the motions for a nonsuit and a directed verdict. The motion was refused and this appeal followed.

The only exception we need consider is that which charges error on the part of the Trial Judge in refusing appellant's motion for a directed verdict upon the ground that Powell was not acting within the scope of his employment in doing the acts which resulted in injury to the respondent.

The appellant owns about two hundred coin operated piccolos. These machines are placed on locations in restaurants and other public places to be played by members of the public. This operation is carried on in some ten counties in the eastern part of this State. The appellant has six or seven employees who service these piccolos. This service includes the placing of piccolos on location, making necessary repairs to them, changing the records and removing from the coin box of said machines the money deposited therein by customers playing such piccolos. An employee of the appellant was furnished a pickup truck to carry on the aforesaid work.

The testimony shows that one of the piccolos owned by the appellant was located in Carter's Cafe in the Town of Dillon, South Carolina, and such piccolo was serviced by W. B. Powell, an employee of the appellant.

The respondent, an insurance agent, testified that on December 16, 1957, she went into Carter's Cafe to talk with W. B. Lester, the manager thereof, about insurance, and while there she had a sandwich and a chocolate milk shake. While the respondent was so engaged, W. B. Powell and B. D. McCall, employees of the appellant, came into said cafe and discussed with Lester if he needed any records for the piccolo. A request was made for the record 'White Christmas' Powell informed Lester that he did not have such record but would bring it on the next trip. Both of the employees walked over to the piccolo and Powell had a bunch of keys in his hand but they did not change the records on said machine. After about fifteen minutes Powell went back to the pickup truck he was driving and then came back to the door of the cafe and said to Lester, 'I want to show you my snake killer.' After the respondent finished eating she started down the steps from the cafe to the street and Powell had placed on the street what the respondent described as a cage approximately two feet long and a foot high, one-half of the top being covered with wire and the other half being solid, and on which was painted the words, 'Snake Killer', 'Danger', 'Mongoose'. She further testified that she observed the cage and saw a furry tail therein. It is agreed that as the respondent came out of the cafe and while she was in front of or near the cage, Powell tripped the mechanism, throwing what appeared to be a mongoose from the cage in the direction of the respondent. She testified that in trying to get away she stumbled and fell flat on her back, with resulting injuries.

W. B. Lester, the manager of the cafe, testified that the respondent was in the cafe, ate a sandwich, had something to drink, and discussed insurance with him. While the respondent was in the cafe Powell and McCall came in and stayed about ten minutes. When Powell got ready to go, he stepped to the door and asked him to step outside because he had something to show him. When Lester went outside, he saw the cage, which has heretofore been described, sitting about midway between the street and the steps to the cafe. Lester stated that Powell wanted him to get in front of the cage but he stepped over to one side of it. He testified that Powell beat on the box a little bit and walked around it and tried to get him to beat on it. Lester further testified that the respondent came out of the cafe at that time and that Powell must have beat on the cage another minute or two. He says that the respondent was on one side of the box and he was on the other side. He testified that the respondent was looking at the box and Powell beat on it a little more and turned the 'mongoose' loose and it came out one end of the box and went between the witness and the respondent. He said this scared the respondent and that she went backwards, stumbled and fell. He described the mongoose that came out of the box as 'some kind of an animal tail with a ball tied on the end of it.'

B. T. McCall, an employee of the appellant, testified that he and Powell were 'about equal' in their work. Their jobs consisted of going around to the various locations where appellant had placed piccolos, taking up the money in them and changing the records from time to time. According to this witness, the appellant provided a truck for them. He further testified that on the day in question that he and Powell had checked the piccolo at Carter's Cafe earlier on that day and they had already finished checking their route when they stopped back by the cafe to get a coca-cola and 'shoot the breeze with W....

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32 cases
  • Fredrich v. Dolgencorp, LLC
    • United States
    • U.S. District Court — District of South Carolina
    • September 8, 2014
    ...2011); see also Armstrong v. Food Lion, Inc., 371 S.C. 271, 276, 639 S.E.2d 50, 52 (S.C. 2006) (citing Lane v. Modern Music, Inc., 244 S.C. 299, 305, 136 S.E.2d 713, 716 (S.C. 1964). The act of a servant done to effect some independent purpose of his own and not with reference to the servic......
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    ...Carolina agency law, Defendant Jones was not furthering his employer's interest in sexually assaulting Plaintiff. See Lane v. Modern Music, 136 S.E.2d 713, 716 (S.C. 1964) ("An act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his empl......
  • 1998 -NMCA- 92, Madsen v. Scott
    • United States
    • Court of Appeals of New Mexico
    • May 13, 1998
    ...of the employee and not in furtherance of the master's interest." Id. at 564, 855 P.2d at 138 (quoting Lane v. Modern Music, Inc., 244 S.C. 299, 136 S.E.2d 713, 717 (1964)). The Court also noted that there are no common law tort cases where an employer was liable when the horseplay was not ......
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    • February 20, 1984
    ...reasonably necessary to accomplish the purpose of his employment and is in furtherance of the master's business. Lane v. Modern Music, 244 S.C. 299, 136 S.E.2d 713 (1964). A master or employer will not be responsible for the acts of its employees where the employee is not in the execution o......
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