Moore v. Ford Motor Co.

• Decision Date: 13 October 1936
• Citation: 265 Ky. 575,97 S.W.2d 400
• Parties: MOORE v. FORD MOTOR CO.
• Court: Kentucky Court of Appeals

97 S.W.2d 400

265 Ky. 575

MOORE v. FORD MOTOR CO.

Court of Appeals of Kentucky

October 13, 1936

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by William Moore against the Ford Motor Company. From a judgment dismissing the petition, plaintiff appeals.

Affirmed.

Hubbard Brothers, of Louisville, for appellant.

Ben F Washer and Walter S. Lapp, both of Louisville, for appellee.

STANLEY Commissioner.

A demurrer of the Ford Motor Company was sustained to the petition of the appellant, William Moore, seeking damages of that company and its employee for assault and battery. He thereupon suffered the dismissal of the petition as to the company and prosecutes an appeal. We state the substance of such portion of it as is material to the decision.

On and before September 17, 1934, the plaintiff was employed by the defendant Ford Motor Company at its assemblying plant. Davis was his foreman or superintendent, and it was his duty, in the course of his employment, upon the termination of the employment of an employee working under him, to fill out or direct the filling out of a printed form prepared by the defendant, known as a "Termination of Service Record" of that employee, and also obtain a "Tool Clearance," before the employee could receive his final pay. On that day the plaintiff voluntarily terminated his employment with the company and Davis "in accordance with his duties and pursuant to his instructions from the defendant Ford Motor Company, herein set out, directed the timekeeper to fill out a 'Termination of Service Record' for the plaintiff's employment, which statements or statement as to the cause of the termination of plaintiff's employment, which statements or statement the said W. Davis instructed the plaintiff to accede to and upon plaintiff's refusal to accede the said W. Davis to accomplish his duties and to secure for the defendant, Ford Motor Company, an agreement as to the 'Termination of Service Record,' and to secure a tool clearance from the plaintiff, both of which were for the record and use of the defendant, Ford Motor Company, did then and there assault this plaintiff."

It is charged that the assault was maliciously and willfully committed by Davis "while acting within the scope or apparent scope of his authority and in the furtherance of his master's business." Davis struck the plaintiff with force and violence, and bruised him about the face and eyes with his clenched hand or blunt instrument. It was done in the presence of numerous others, and resulted in humiliation mortification, and great physical pain and suffering, to his damage in the sum of $2,000.

Passing the serious question of material portions of the petition being but conclusions of the pleader, we go straight to the point argued by the appellant that the petition presented a justiciable claim against the employer.

In John v. Lococo, 256 Ky. 607, 76 S.W.2d 897, 899, the general rule of measurement of responsibility is stated to be: "If the assault of a servant of a third person is done in the execution of the authority given him by the master and for the purpose of performing what he was directed to do, the master is responsible whether the wrong done was occasioned by a wanton, willful purpose, or to accomplish his business in an unlawful manner, but, if the servant commits a wrongful act without authority, and not for the purpose of executing the orders or doing the work of his master, the latter is not responsible therefor."

The general principles have been fully discussed in that and other opinions, especially in Robards v. P. Bannon Sewer Pipe Co., 130 Ky. 380, 113 S.W. 429, 18 L.R.A. (N.S.) 923, 132 Am.St.Rep. 394, and Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359. Reiteration is unnecessary. We may observe, however, as of close pertinence to the case at bar, that it is not sufficient merely that the wrongful act had its origin in some agency relation. Even though the assault arose out of the employment, the circumstances of the wrongful act must afford the reasonable inference that it was done in furtherance of the master's business or interest and there was an implied consent thereto, such as where the service in which the employee was engaged involved the exercise of his discretion in the particular matter.

If the servant in doing the tortious act is executing a purpose personal to himself, he has gone outside his line of duty in his master's business--he stepped out of the service. The relation is but an accidental or incidental connection. Brooks v. Gray-Von Allmen Sanitary Milk Co., 211 Ky. 462, 277 S.W. 816, 46 A.L.R. 1207.

The source of the difficulty here, as in other cases, is the element of an implied authority of the servant to use the force complained of in performing his duty. The petition in respect of the scope of authority charges no more than that it was the duty of Davis to obtain from the plaintiff an approval of or agreement as to statements on a form showing his service record, which had been filled out by the time-keeper, and, when the plaintiff refused to agree because of "certain statements" as to the cause of the termination of his employment, in order to "accomplish his duties and to secure" the agreement and a "Tool Clearance" (whatever that may be), Davis assaulted the plaintiff. In short, the foreman maliciously struck the plaintiff in order to make him agree. The allegation is that it was within the scope of the foreman's authority to use such cave man tactics, but the...