Moskins Stores v. De Hart

• Citation: 29 N.E.2d 948,217 Ind. 622
• Decision Date: 25 November 1940
• Docket Number: 27469.
• Parties: MOSKINS STORES, Inc., v. DeHART et al.
• Court: Indiana Supreme Court

29 N.E.2d 948

217 Ind. 622

MOSKINS STORES, Inc., v. DeHART et al.

No. 27469.

Supreme Court of Indiana

November 25, 1940

Appeal from Superior Court, Delaware County; Claude J. Ball judge.

Matson, Ross, McCord & Clifford, of Indianapolis, and W. H. Bales, of Muncie, for appellant.

McClellan & McClellan and Clarence Benadum, all of Muncie, for appellees.

FANSLER Judge.

The appellee Susie DeHart brought this action against the appellant and its employee, the appellee Raymond G. Poth, to recover for injuries sustained because of an assault and battery committed on her by Poth.

It is alleged, and appears from the evidence most favorable to the plaintiff, that the appellee Poth was employed by the appellant as a collector; that the plaintiff had purchased certain clothing from the appellant, and that Poth went to the plaintiff's home to collect; that the plaintiff told him she was unable to pay anything on her account at that time; that an altercation ensued during which Poth choked the plaintiff, causing a nervous condition which has permanently impaired her health.

Upon the question of whether a master is liable for an assault and battery committed by a servant employed to make collections there is some conflict in the authorities. 18 R.C.L. § 263 pp. 807, 808; 39 C.J. § 1509, p. 1309. It is said on page 808 of 18 R.C.L.: 'But for an assault resulting from an attempt on the part of the employee to collect money due to the employer, the latter is not as a rule to be held accountable.' In Mechem on Agency, 2d Ed., Vol. 2, § 1978, pp. 1540, 1541, 1542, 1543, it is said: 'The servant's act in punishing persons who annoy him in the performance of the service, or who interfere with or injure the master's property, or his own gratuitous act in using personal violence as a means of coercing the performance of contracts or the payment of debts due the master, can very seldom be regarded as within the course of the employment. A fortiori will this be true where the violence is resorted to for the purpose of coercing the performance of that in which the servant was primarily interested rather than the master. It is true that expressions indicating a wider liability are sometimes to be found. Thus in a case in Wisconsin (Bergman v. Hendrickson et al., 1900, 106 Wis. 434, 82 N.W. 304, 80 Am.St.Rep. 47) where the servant who was a barkeeper had made an assault upon one of his master's patrons, for the purpose, as it was contended, of coercing payment for liquors which he had purchased, the court said 'If B [the servant] committed the assault for the purpose of collecting payment for his master's liquor, he was within the scope of his employment. It was his method of performing the duty delegated to him, and, although the method may not have been either expressly authorized or even contemplated,--nay, although it may have been expressly prohibited,--yet the master is liable for the damages caused thereby, provided he has intrusted to the servant the duty he was attempting to perform.' Unless there was something indicating that the use of force was contemplated or usual--of which there was no evidence--or unless the court deemed the case to fall within the principle of those in which a special duty of protection is supposed to exist (which seems probable from the cases cited), it must be thought that the rule here laid down is wider than sound principle or the authorities generally with justify. It surely cannot be true that because the...