Life & Cas. Ins. Co. of Tenn. v. Padgett

• Decision Date: 07 November 1966
• Docket Number: No. 5-3921,5-3921
• Citation: 241 Ark. 353,407 S.W.2d 728
• Parties: LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE and A. J. Skinner, Appellants, v. Faber PADGETT et ux., Appellees.
• Court: Arkansas Supreme Court

Page 728

407 S.W.2d 728

241 Ark. 353

LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE and A. J Skinner, Appellants, v. Faber PADGETT et ux., Appellees.

No. 5-3921.

Supreme Court of Arkansas.

Nov. 7. 1966.

George F. Hartje, Jr., Conway, and Chowning, Mitchell, Hamilton & Burrow, and Wright, Lindsey & Jennings, Little Rock, for appellants.

Guy H. Jones, Conway, for appellees.

GEORGE ROSE SMITH, Justice.

Faber Padgett and his wife brought this action against the appellants, Life & Casualty Insurance Company of Tennessee and its agent. A. J. Skinner, to recover damages for injuries sustained when Skinner assaulted and beat Padgett with a heavy stick of wood. The jury's verdict, against both defendants, awarded Padgett $15,000 as actual damages and $35,000 as punitive damages. Mrs. Padgett's cause of action is no longer in issue. The verdict was against her claim, and she has not appealed.

The first question is whether there is substantial evidence to support a finding that Skinner's tortious assault was committed in the prosecution of his employer's business.

The testimony of Mr. and Mrs. Padgett is so similar that we need not narrate it separately. On the afternoon of February 22, 1965, Skinner called at the Padgetts' home, a few miles from Conway, to collect premiums upon policies issued to the Padgetts. A dispute arose about whether the Padgetts were behind in the payment of one weekly premium. Skinner attempted to convince the couple by his collection records, that there was a delinquency, but the Padgetts insisted that their payments were current. Finally Padgett said that he would write to the company and let them straighten it out. Skinner stamped the floor with anger and said: 'Well, you do that.'

Two or three times during the altercation Padgett asked Skinner to leave the house. Eventually Skinner did leave, closing the front screen door behind him as he stepped from the living room to the porch. At that point Padgett said: 'Don't come back to my house any more, Mr. Skinner. If that's the kind of a man you are, I don't want to have any dealings with you whatsoever.' Skinner answered: 'There ain't nobody going to tell me what I can do and what I can't do.' With that Skinner put down his satchel of papers, seized a heavy piece of firewood, re-entered the house, and struck Padgett repeatedly about the head. That Padgett suffered serious injuries is not denied.

Counsel for Life & Casualty, in arguing that it was entitled to a directed verdict, cite several out-of-state decisions holding that an employer is not liable for his employee's intentional tort unless the nature of the employment is such as to make the use of force not unlikely. That principle seems really to be a liberalization of the law's bygone reluctance to hold a master liable for his servant's intentional torts. 'There was once a great deal of conceptual and procedural difficulty in the way of holding the master for the deliberate and other willful wrongs of his servant in any case where such acts were not specifically commanded. * * * But all this is now a matter of history.' Harper & James, Torts, § 26.9 (1956). Prosser takes much the same view, pointing out that the tendency of the modern cases is to hold the employer liable when, as here, the employee loses his temper and attacks the plaintiff during a quarrel arising out of the employment. Prosser, Torts, p. 478 (3d ed., 1964).

We think the law as it stands today is fairly summarized in the Restatement of Torts, where it is said that the master is subject to liability for his servant's intentional tort 'if the act was not unexpectable in view of the duties of the servant.' Restatement, Torts (2d), § 245 (1958). For a quarrel to arise in the course of an employee's attempt to collect money is certainly 'not unexpectable.' The jury might well have concluded that disputes over money matters are of such common occurrence that Skinner's conduct could not reasonably be said to be unforeseeable.

Our cases have not been out of step with the trend elsewhere. Not infrequently, in cases similar to this one, our main concern has been whether a dispute arising out of the employment was continuous up to the time of the intentional wrong. Such a case was Bryeans v. Chicago Mill & Lbr. Co., 132 Ark. 282, 200 S.W. 1004 (1918), where we said: 'If the quarrel which was started by Breysacre in telling Bryeans that he would have to stop bothering the men in the shop was continuous to the time of the killing, and the killing grew out of such quarrel, then Breysacre at the time of the killing was acting in the scope of his employment. But if the quarrel which was thus started had ceased for an appreciable interval, however short, and was then renewed through the fault of Bryeans and the killing was the result of the quarrel...