Naber v. McCrory & Sumwalt Const. Co.

• Decision Date: 29 January 1981
• Court: Alabama Supreme Court
• Parties: John A. NABER v. McCRORY & SUMWALT CONSTRUCTION COMPANY. 79-630.

Page 973

393 So.2d 973

John A. NABER v. McCRORY & SUMWALT CONSTRUCTION COMPANY.

79-630.

Supreme Court of Alabama.

Jan. 29, 1981.

Bruce M. Bieneman and Robert J. Riley of Cholette, Perkins & Buchanan, Grand Rapids, Mich., for appellant.

W. Boyd Reeves and Kirk C. Shaw of Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves, Mobile, for appellee.

EMBRY, Justice.

This action arose out of a fight between plaintiff John A. Naber and one of the defendants, Glen Manion, on a construction project in Mobile, Alabama, in May 1976. At the time of the fight Naber was employed as a field superintendent by the company supplying light fixtures for the project. Manion was employed as a carpenter by the general contractor on the job, McCrory & Sumwalt Construction Company. Following the fight, Naber sued Manion and McCrory & Sumwalt for his injuries sustained in the fight. Naber obtained a default judgment against Manion which is not at issue in this appeal.

Initially, Naber sued McCrory & Sumwalt on the theory it was liable under the doctrine of respondeat superior for the assault and battery committed by Manion. McCrory & Sumwalt moved for summary judgment. Before that motion was argued to the court, however, Naber amended his complaint to allege a second theory of recovery against McCrory & Sumwalt the basis of which was that McCrory & Sumwalt was actively negligent in its hiring, training and supervision of Manion. McCrory & Sumwalt's motion for summary judgment was thereafter treated as a motion for partial summary judgment upon Naber's theory of vicarious liability. The trial court granted partial summary judgment for McCrory & Sumwalt on that issue.

Then, Naber moved to dismiss his claim against McCrory & Sumwalt for its alleged active negligence in hiring, training and supervising Manion. That motion was granted. Thus, the only theory of recovery against McCrory & Sumwalt remaining in plaintiff's amended complaint was that of vicarious liability as to which the trial court had granted summary judgment in favor of McCrory & Sumwalt. This appeal is from a final judgment of 4 April 1980 which recited that the cumulative effect of the default judgment against Manion, and entry of partial summary judgment against Naber regarding McCrory & Sumwalt, was a final resolution of all claims as to all parties in this action.

We reverse and remand.

The sole issue for review in this case is whether the trial court erred in granting the partial summary judgment in favor of McCrory & Sumwalt on the theory there was no vicarious liability on its part growing out of the assault and battery committed on the person of plaintiff. Naber's theory was that the assault and battery was done while Manion was acting in the line and scope of his assigned duties of employment, thus giving rise to vicarious liability upon the part of McCrory & Sumwalt under the doctrine of respondeat superior.

On 15 May 1976, several McCrory & Sumwalt employees, including Manion, were assigned to move light fixtures under Naber's supervision from a warehouse to the job site. Naber and Manion had a verbal dispute that morning about the manner of moving fixtures in spite of which they continued moving fixtures without exchanging blows. A short while later both Naber and Manion left the warehouse; however, both returned. Manion went to McCrory & Sumwalt's office trailer, told the project supervisor he was quitting because he could not work with Naber, picked up his tool box, and returned to the warehouse.

At the warehouse Manion told his co-workers that he had quit and began shaking hands with them. Manion then shook hands with Naber and with his free hand struck Naber. A fight...