Oakland City Agricultural And Industrial Society v. Bingham

• Citation: 31 N.E. 383,4 Ind.App. 545
• Decision Date: 12 May 1892
• Docket Number: 472
• Parties: THE OAKLAND CITY AGRICULTURAL AND INDUSTRIAL SOCIETY v. BINGHAM
• Court: Indiana Appellate Court

31 N.E. 383

4 Ind.App. 545

THE OAKLAND CITY AGRICULTURAL AND INDUSTRIAL SOCIETY v. BINGHAM

No. 472

Court of Appeals of Indiana

May 12, 1892

From the Gibson Circuit Court.

Judgment reversed.

L. C Embree, A. P. Twineham and W. D. Robinson, for appellant.

C. A Buskirk and J. W. Brady, for appellee.

OPINION

CRUMPACKER, J.

This action was brought by Bingham against the agricultural society for damages resulting from an alleged assault committed upon the plaintiff by a servant of the defendant.

The complaint was in two paragraphs, the first of which alleges, in substance, that the defendant is an agricultural society, incorporated under the laws of this State, and in August, 1890, it held a fair, at which agricultural and other industrial products were exhibited, and to which the general public were invited; that the defendant had in its employment at such fair, as a policeman and gate-keeper, one Willis Swallow, whose duty was to preserve peace and good order, and to exclude those who were not entitled to admission, and to eject those who were disorderly; that plaintiff held a pass entitling him to admission to said fair, and he peaceably entered the fair grounds thereon, and while lawfully therein the "defendant's said employee, Swallow, pretending that plaintiff had not entered said fair grounds properly, and that plaintiff ought to be ejected therefrom by said employee, and that plaintiff had no right of entrance to said grounds, and in an effort by said employee to exclude the plaintiff from said fair grounds said employee then and there acting as such employee," without any cause or provocation whatever, assaulted the plaintiff and beat and bruised him with a club on and about his head and face so that he was permanently disabled.

The second paragraph alleges that said Swallow was possessed of a "cruel and quarrelsome disposition," which unfitted him for the duties of said employment, but the defendant negligently engaged him therein without investigating his fitness or qualifications therefor; that plaintiff had the right to go upon said fair ground, and while lawfully and peaceably attempting so to do, said Swallow, "wholly without cause or provocation therefor, but in a spirit of oppressive malice and wantonness, fell upon the plaintiff and violently ejected him from said fair ground," and while so doing assaulted and beat him with a club so that his nose was broken and he was otherwise permanently injured.

A demurrer to each paragraph of the complaint was overruled and the cause, put at issue by the general denial, was tried by a jury, who found for the plaintiff and assessed his damages at $ 275. Judgment was rendered upon the verdict, and the defendant appeals and assigns for error the ruling upon the demurrer to each paragraph of complaint and in refusing a new trial.

The point is made against the first paragraph of complaint, that it fails to show the assault complained of was perpetrated by the gate-keeper while he was acting in the line of his employment. It is insisted with much persistence and plausibility that the averments that appellee was rightfully upon the fair ground, and was orderly and peaceable, show the assault was not committed by the gate-keeper in his capacity as a servant, because he was only authorized to eject objectionable persons, and the pretext that appellee was objectionable, being without foundation, did not characterize the act as one for which the appellant was responsible. The relation of master and servant existed between the appellant and the gate-keeper, to which relation the doctrine of respondeat superior obtains. A master is responsible not only for the omissions and shortcomings of his servant, but for positive misfeasances in the line of duty. Such responsibility is founded upon the theory that the master authorized the wrong, either expressly or by implication. It is a fiction of the law that the master is always present in the conduct of his business, and any wrong committed by a servant while so engaged, though tortious and malicious in its character, is the wrong of the master. Authority in the physical absence of the master is often implied from the nature of the employment and the character of the act, though it be shown to have been in violation of the express command of the master. But the application of this principle, for cogent reasons, extends only to acts properly within the range of the employment. A master does not stand sponsor for the deportment of one in his service except while he is actually engaged about the master's business. It is very difficult in some cases to determine what acts are to be imputed to the master and what not; but where the servant clearly departs from his employment, and performs an act for some purpose of his own, independent of, and not connected with, the master's affairs, the latter can not be held liable therefor.

It was said by Lord KENYON, in McManus v. Crickett, 1 East, 106: "When a servant quits sight of the object for which he is employed, and without having in view his master's orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and, according to the doctrine of Lord HOLT, his master will not be answerable for such act."

It was the early rule that the master could not be held for the wilful wrongs of the servant, even in the line of the employment, but that rule has been quite generally discarded by the modern adjudications. The test seems to be, was the act complained of done within the general scope of the employment, and with a view of accomplishing some end thereof? If so, the employer will be answerable, though the act be ill-advised, malicious, and against his express order. Pittsburgh, etc., R. W. Co. v. Kirk, 102 Ind. 399, 1 N.E. 849; Phelon v. Stiles, 43 Conn. 426; Adams v. Cost, 62 Md. 264; Howe v. Newmarch, 12 Allen 49; Golden v. Newbrand, 52 Iowa 59, 2 N.W. 537; Rounds v. Delaware, etc., R. R. Co., 64 N.Y. 129; Quinn v. Power, 87 N.Y. 535; Wood Master and Servant, pp. 593 and 594.

But a master will not be held liable for the act of a servant who employs his position as a cloak to protect him in the prosecution of a purely private purpose, unconnected with the business of the former. Evansville, etc., R. R. Co. v. Baum, 26 Ind. 70; Gilliam v. South, etc., R. R. Co., 70 Ala. 268; Rounds v. Delaware, etc., R. R. Co., supra.

Where a master employs one in a vocation requiring him to act under certain conditions and commits to his discretion the duty of determining when and what action may be necessary, the employer will be responsible for the misjudgment, as well as the misconduct, of the servant, and if he acts when there is no occasion for it at all, though intending to accomplish some end of the employment, such responsibility will still exist.

This doctrine is applicable to the case in judgment, as it appears that the gate-keeper was authorized to preserve order and...