Peter Anderson & Co. v. Diaz
Decision Date | 10 February 1906 |
Citation | 92 S.W. 861,77 Ark. 606 |
Parties | PETER ANDERSON & COMPANY v. DIAZ |
Court | Arkansas Supreme Court |
Opinion Delivered.
Appeal from Independence Circuit Court; FREDERICK D. FULKERSON Judge; reversed.
STATEMENT BY THE COURT.
Appellant was a corporation, carrying on a retail liquor business in Batesville, Arkansas. Arthur Anderson was in its employ as bartender. The appellee for his cause of action alleges
The damages were laid at $ 5,000, for which judgment was asked.
The answer denied the allegations of the complaint. There was proof to support the allegations of the complaint. There was no proof and no claim that appellant was negligent in employing or retaining its bartender, Arthur Anderson. The cause was submitted to the jury upon the proof and instructions, and they returned a verdict for $ 1,000, and judgment was entered accordingly, which this appeal seeks to reverse.
Judgment reversed and cause dismissed.
J. H Harrod and W. A. Oldfield, for appellant.
1. The master is not liable for malicious acts of his servant committed without the scope of his employment. 140 Mass. 327; 72 Minn. 405. The test of the master's liability is not whether the act was done during the existence of the servant's employment, but whether it was committed in the prosecution of the master's business. 33 Neb. 582. See also, 158 Pa.St. 275.
2. The fourth instruction was erroneous. The master is never liable in exemplary damages for the wrongful or malicious act of the servant, unless it was done with the knowledge or consent of the master, or he afterwards ratified it, or was in some manner negligent in the employment or retention of the servant. 63 Ark. 387; 56 N.Y. 47.
Lyman F. Reeder, Ernest Neill, and Yancey & Casey, for appellee.
1. The bartender, acting within the scope of his employment, made the plaintiff drunk. The law imposed the duty upon appellant in such case to protect its patron. 90 N.Y. 588; 57 Me. 202; 42 Am. Rep. 33. And they were liable for wanton injuries to him. 120 Pa.St. 579; 83 Minn. 40. There is no distinction between the duty that the proprietors of a saloon owe to its patrons and that of a common carrier. 41 Am. Dec. 465; 36 Wis. 459; Fed. Cas. No. 7258; 53 Me. 163, 169; 91 Am. Dec. 657.
2. The fourth instruction was correct. Plaintiff, under the proof, was entitled to exemplary damages. 6 Sutherland on Dam. 727; 37 Ark. 519, 522; 48 Ark. 396, 406.
OPINIONWOOD, J. (after stating the facts).
Was appellant liable?
The decision in Gage v. Harvey, 66 Ark. 68, 48 S.W. 898, shows that there is no statutory liability. The sale of liquor at appellant's place of business was not the proximate cause of the injury. Nor was appellant liable according to any of the rules of the common law. Black on Intox. Liq., § 281; Cruse v. Aden, 127 Ill. 231, 20 N.E. 73; Struble v. Nodwift, 11 Ind. 64.
The cruel act of its agent, Arthur Anderson, was clearly beyond the line of his employment. The master is not liable for the acts of his servant that are beyond the scope of his employment. Cooley on Torts, p. 627. "Where a servant quits sight of the object for which he was employed, and without having in view his master's orders, pursues that which his own malaise suggests," the master will not be liable for his acts. McManus v. Crickett, 1 East 106. The "test," says the Supreme Court of...
To continue reading
Request your trial-
Penas v. Chi., M. & St. P. Ry. Co.
...opinion. Compare Curran v. Olson, 88 Minn. 307, 92 N. W. 1124,60 L. R. A. 733, 97 Am. St. Rep. 517, with Anderson v. Diaz. 77 Ark. 606, 92 S. W. 861,4 L. R. A. (N. S.) 649. (b) Where the law recognizes that a duty is owed to the person injured, and that duty has been violated by the servant......
-
Hollerud v. Malamis
...fault under his dramshop act/negligence count.29 Cf. Beilke v. Carroll (1909), 51 Wash. 395, 98 P. 1119, with Peter Anderson & Co. v. Diaz (1906), 77 Ark. 606, 92 S.W. 861. See, also, Baker v. Golematis, ...
-
Nesbit v. Chicago, R.I. & P. Ry. Co.
... ... employment. Garvick v. Railroad, 124 Iowa 691; S.C., ... 131 Iowa 415; St. Peter v. Telephone Co., 151 Iowa ... 294, 131 N.W. 2; McDonald v. Franchere, 102 Iowa ... 496, 71 ... Wis. 573 (48 N.W. 669); Morris Co. v. Henley, 145 ... Ala. 678 (40 So. 52); Anderson Co. v. Diaz, 77 Ark ... 606 (92 S.W. 861, 4 L. R. A. (N. S.) 649, 113 Am. St. Rep ... 180); ... ...
-
Penas v. Chicago, Milwaukee & St. Paul Railway Company
... ... in Standard Oil Co. v. Anderson, 212 U.S. 215, at ... page 221, 29 S.Ct. 252, 53 L.Ed. 480) is that announced in ... Farwell v ... 307, 92 ... N.W. 1124, 60 L.R.A. 793, 97 Am. St. 517, with Anderson ... v. Diaz, 77 Ark. 606, 92 S.W. 861, 4 L.R.A. (N.S.) 649 ... (b) ... Where the law ... ...