Lazar v. Great Atl. & Pac. Tea Co

• Decision Date: 30 April 1941
• Docket Number: No. 15251.,15251.
• Citation: 14 S.E.2d 560
• Court: South Carolina Supreme Court
• Parties: LAZAR. v. GREAT ATLANTIC & PACIFIC TEA CO. et al.

14 S.E.2d 560

LAZAR.

v.GREAT ATLANTIC & PACIFIC TEA CO. et al.

No. 15251.

Supreme Court of South Carolina.

April 30, 1941.

Appeal from Common Pleas Circuit Court of Barnwell County; G. Dewey Oxner, Judge.

Action by R. J. Lazar against the Great Atlantic & Pacific Tea Company and H. J. Smalls, for an assault and battery allegedly committed upon plaintiff by defendant H. J. Smalls. From a judgment for plaintiff, the Great Atlantic & Pacific Tea Company appeals. '

Affirmed.

Brqwn & Watts, of Barnwell, for appellant.

Blatt & Fales, of Barnwell, for respondent.

BONHAM, Chief Justice.

We gather from the "Statement" set out in the transcript of record that this is an action for damages for an alleged assault and battery committed upon the person of plaintiff by the defendant, H. J. Smalls, the manager of the store of the defendant, The Great Atlantic & Pacific Tea Company, in the town of Barnwell, South Carolina.

The plaintiff, R. J. Lazar, is the proprietor of a grocery store in the same town.

The complaint sets out the circumstances of the alleged assault and battery and also alleges that the assault and battery was done by the defendant, H. J. Smalls, "negligently, willfully and wantonly while engaged in and about his said employer's business, and within the apparent and general scope of his employment as manager, agent and servant of the defendant, The Great Atlantic & Pacific Tea Company, and by reason and in consequence of said assault, this plaintiff was greatly injured, bruised and wounded, and suffered great pain, and serious and permanent injuries

The answer of the defendants admits the formal allegations of the complaint and that the defendant Smalls was, at the times mentioned in the complaint, employed by The Great Atlantic & Pacific Tea Company as manager in charge of its store at Barnwell, South Carolina. Further answering, it is alleged that the altercation was brought about and caused by plaintiff, and took place in front of plaintiff's store, a distance of two blocks from the defendant's store; that.defendant Smalls was not acting as agent or employee of the defendant, The Great Atlantic & Pacific Tea Company, "but the same were his sole, separate and individual acts;" that such acts, if done by Smalls, which is denied, were not done by him as agent, employee or servant of his employer, but were outside and beyond his authority, and were not within the scope of his duties.

Upon these issues the case went to trial before Judge Oxner and a jury.

At the conclusion of the taking of the testimony, the defendant, The Great Atlantic & Pacific Tea Company, made a motion for directed verdict in its favor upon the grounds that the only reasonable inference to be drawn from the testimony is that the defendant Smalls was acting individually and not as agent or employee of The Great Atlantic & Pacific Tea Company; that his acts were not within the scope of his employment. Further, that the plaintiff brought on the difficulty by goingto the store of The Great Atlantic & Pacific Tea Company and having words with a customer, which brought on the fight later. Also that plaintiff invited Smalls around to Wall Street, and dared him to come. A motion was also made to direct a verdict as to punitive damages. After argument of counsel, the motions were refused. The jury found for plaintiff, $300 actual damages and $700 punitive damages. It does not appear that any motion was made for new trial.

The defendant Smalls does not appeal. The defendant, The Great Atlantic & Pacific Tea Company, appeals and sets out the grounds of its appeal in ten exceptions, which it groups for consideration in the following wise:

"Questions Involved.

"1. Did his Honor, the trial Judge, err in refusing to direct a verdict for defendant-appellant upon the ground that there was insufficient evidence to submit to the jury upon the question of whether the act of the servant referred to in the complaint and testimony was in the scope of his employment and discharge of his duties for which the master is liable?

"2. Did his Honor, the trial Judge, err in refusing to direct a verdict for defendant-appellant for punitive damages upon the ground that there was insufficient evidence to submit to the jury upon this question?

"3. Was his Honor, the trial Judg6, in error in allowing testimony as to the statements and conduct of defendant, Smalls, and the statements and conduct of the witness, J. B. Grubb, after the assault and battery referred to in the complaint had terminated?"

The exceptions are grouped as follows:

"Exceptions 1, 2 and 3 under Question 1.

"Exceptions 4, 5, 6 and 7 under Question 2.

"Exceptions 8, 9 and 10 under Question 3."

It is needless to cite authorities in support of the ruling that the sufficiency of the evidence is not for the consideration of the trial Judge. If there is any competent and relevant evidence, it is the duty of the trial Judge to submit the matter to the jury. This might well dispose of the issues made by questions 1 and 2.

The testimony in the case was long drawn out and much of it repetitious. There were six witnesses for the plaintiff in addition to the plaintiff. The latter gave his statement of the origin and cause of the encounter. He runs a small grocery store. He saw one of his customers, to whom he sold groceries on credit, coming out of the A. & P. Store with bundles in his arms, and reproached him for trading with another without paying plaintiff. The man said he bought those goods for another. Plaintiff entered the store and inquired of one Fields, a clerk, if the man's statement was true. He left the store and went to his own place of business. Soon thereafter Smalls appeared on the sidewalk at plaintiff's store and called him out and charged him with interfering with the customers of the store of which Smalls was manager, and said if he repeated it he would beat him up. The assault and battery followed.

The defendant Smalls, on his direct examination, said:

"The first I saw of him (plaintiff) he had stopped a negro that was going out of the store. Stopped him just on the sidewalk and started a discussion with him as to why he was trading there instead of with him, and the only reason I did notice it at all was because he had raised his voice just a little. It was just a little uncommon with Dick. * * * The negro left. * * * Dick came in the store and Jack was about midway of the store and he stopped and asked him how much the negro bought. I don't remember the amount Jack told him how much he spent and he wanted to know if he was buying it for himself or somebody else and Jack told him he

didn't know.

*****

"I went around to Dick Lazar's store, called him out on the street and told him I didn't like the way he was doing. I didn't think that was quite the way to handle a thing like that. I didn't blame him wanting his money out of the Negro, if the Negro owed him, but not to bother him any more with that sort of stuff in the store and he said he would do as he pleased and then I told him, if he did, I would whip him or get whipped."

Here is testimony by the defendant which was clearly proper and pertinent for the jury to consider on the question whether Smalls was acting within the scope of his duties as manager of the A. & P. Store. It fits in with the plaintiff's testimony thereabout.

On cross-examination Smalls said: "Q. And the only customers that you could protect and be interested in would be the customers of the A & P store—isn't that right? A. Sure.

"Q. Thats right and therefore, when you went to Wall Street to talk to Dick Lazar, you went to talk to him about the customers of the A & P store, didn't you? A. I reckon it was sort of the customers, but I went around there because he came...