Nelson Bus. Coll. Co. v. Lloyd

• Court: United States State Supreme Court of Ohio
• Writing for the Court: MINSHALL
• Citation: 54 N.E. 471,60 Ohio St. 448
• Parties: NELSON BUSINESS COLLEGE CO. v. LLOYD.
• Decision Date: 13 June 1899

60 Ohio St. 448
54 N.E. 471

NELSON BUSINESS COLLEGE CO.
v.
LLOYD.

Supreme Court of Ohio.

June 13, 1899.

Error to circuit court, Hamilton county.

Action by one Lloyd against the Nelson Business College Company. From an order reversing a judgment rendered for defendant, it brings error. Affirmed.

Shauck and Spear, JJ., dissenting.

Syllabus by the Court

1. An employer is liable for the willful or malicious acts of his servant, done in the course of the servant's employment.

2. When the act complained of may or may not be, from its nature, in the course of the servant's employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.

3. In a suit against an employer for an injury caused by the wrongful act of his servant, and the evidence is such that different minds may fairly draw different conclusions from it as to the real motive and purpose of the servant in doing an act, apparently within the course of his employment, it should be left to the jury to determine the question, under proper instructions as to the law; and it is error for the court, in such case, to direct a verdict for the defendant.

[Ohio St. 448]W. C. Cochran, for plaintiff in error.

Ohio St. 450]William M. Eames and William E. Bundy, for defendant in error.
[Ohio St. 452]MINSHALL, J.

In the original suit the plaintiff sought to recover of the defendant damages for injuries occasioned him by one of its servants, acting in the capacity of janitor; the averment being that the janitor, being then and there engaged in the performance of his duties as such, ‘assaulted the plaintiff, and violently, wrongfully, recklessly, and carelessly caused a ladder on which he was lawfully engaged at work in the school room of the defendant to be overturned,’ whereby he was violently thrown to the floor and seriously injured. On the trial to a jury, at the close of the plaintiff's [Ohio St. 453]evidence, the court, on motion of the defendant, instructed the jury to render a verdict for the defendant, which was done. A motion for a new trial was overruled, exception taken, and judgment rendered on the verdict. A bill of exceptions containing all the evidence was also taken, and made a part of the record. On error to the circuit court, the judgment was reversed for error in directing a verdict for the defendant; and the question is now presented to this court whether the trial court erred in directing a verdict for the defendant on the evidence produced by the plaintiff.

The evidence offered tended to show that the plaintiff had been called by the company for the purpose of repairing an electrical light in a room of the college, and was so engaged at the time he was thrown from the ladder to the floor by the act of the janitor and injured. It also tended to show: That the janitor was at the time engaged in the performance of his duties, cleaning up the room, and this required the moving of the tables from one part of the room to another. The ladder had been placed on one of these tables, so that the light that needed repair could be reached. That the janitor, being delayed in his work by the time taken to repair the light, became impatient, and demanded the plaintiff to get down. He was told that it would only take a few minutes, but he was unyielding, and violently shoved the table, with the result before stated. It would seem that there cannot be much doubt that the janitor was at the time engaged in the performance of his duties, or at least that that question should have been submitted to the jury. He had, for the time being, the custody of the room, [Ohio St. 454]and was engaged in cleaning it up and putting it in order for use that evening, which, as before stated, required the moving of tables from one part of the room to another. There was some evidence that the janitor had an ill will against the plaintiff, and availed himself of this opportunity to injure him. If this were so, and the act was done with no other purpose, it was a clear departure from his employment, and the master is not liable. Railroad Co. v. Wetmore, 19 Ohio St. 110. Whether the act was done with this purpose or not was certainly a matter for the jury to determine upon a consideration of all the evidence. The manner and character of the witnesses testifying in this regard might largely influence the jury in arriving at a conclusion on the subject.

Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent, acts of a servant, done in the course of his employment and within the scope of his authority. Mechem, Ag. §§ 740, 741; Smith, Mast. & S. 151. Among the older cases on the subject, and which have frequently been followed, are McManus v. Crickett, 1 East, 106, where it was held that the master was not liable for the act of his servant in purposely driving his chariot against the chaise of the plaintiff, the master not being present; and Wright v. Wilcox, 19 Wend. 343, where it was held, on the authority of the previous case, that a...