Polk Sanitary Milk Co. v. Berry
| Decision Date | 20 December 1938 |
| Docket Number | 15882. |
| Citation | 17 N.E.2d 860,106 Ind.App. 29 |
| Parties | POLK SANITARY MILK CO. et al. v. BERRY. |
| Court | Indiana Appellate Court |
W E. Bussell and W. Dale Rafferty, both of Greenfield, and Oscar Hagemier, of Indianapolis, for appellant.
Jackson & Hinchman, of Greenfield, and Joseph S. Kaufman, of Indianapolis, for appellee.
Appellee recovered a judgment for damages against the appellant Polk Sanitary Milk Company and Raymond Schaeffer.
The complaint, which was in one paragraph, proceeds on the theory that Schaeffer, as agent and employee of the Polk Sanitary Milk Company, and while acting within the scope of his agency and employment, wilfully and maliciously committed an assault and battery upon the person of appellee, resulting in the injuries complained of. To this complaint the appellant Polk Sanitary Milk Company filed an answer in general denial. The cause was submitted for trial to the court and jury resulting in a verdict and judgment awarding appellee damages. In due time appellant Polk Sanitary Milk Company filed its separate motion for a new trial, which was overruled. It is the action of the trial court in ruling upon this motion which is assigned as error for reversal. The grounds in said motion duly presented are: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the damages are excessive; (4) the court erred in refusing to give, after the submission of plaintiff's evidence, a peremptory instruction to return a verdict in favor of the defendant Polk Sanitary Milk Company, a corporation; (5) the court erred in refusing to give, after the submission of all the evidence, a peremptory intruction to return a verdict in favor of the defendant Polk Sanitary Milk Company, a corporation; (6) error of the court in refusing to give instruction No. 3 tendered by the defendant Polk Sanitary Milk Company, a corporation; (7) error in permitting one Berkley Tracy, a minor, to testify as a witness in the cause.
Appellant in challenging the sufficiency of the evidence to sustain the verdict and the action of the trial court in refusing to instruct the jury to return a verdict in its favor, asserts that "all of the evidence in this cause is to the effect that in the commission of the alleged personal injury to the appellee by one Raymond Schaeffer, an employee of the appellant, Polk Sanitary Milk Company, a corporation, said employee acted outside the scope of his employment, and that all of his acts in reference to the appellee were not authorized or directed by the Polk Sanitary Milk Company and were not done or performed for the purpose of carrying out any business for the benefit of or in the interest of the appellant, Polk Sanitary Milk Company, a corporation"; that all of the evidence is to the effect that said Raymond Schaeffer "stepped outside of the general scope of his employment and was not engaged in any business of the appellant, Polk Sanitary Milk Company, when he became involved in an altercation with the appellee and committed the alleged tortious acts against the appellee."
It must be conceded at the outset that one of the material allegations of the complaint is that the appellant milk company committed an assault and battery on appellee, by and through the act of its servant while acting in the line of his duty and within the scope of his employment; that if there was no proof of this material allegation nor any evidence from which the fact might properly be inferred by the jury, then there was a total failure of proof to support the material allegation of the complaint, and it was the duty of the trial court to direct a verdict for the appellant milk company.
The evidence, so far as pertinent to the question of imposing any liability on the part of the appellant milk company, by reason of the acts and conduct of its agent, Schaeffer, who was at the time in the employ of said milk company, discloses that immediately prior to the altercation between appellee and Schaeffer, Schaeffer came to the residence of one Catherine Linder for the purpose of collecting for milk which had been previously sold and delivered to her by the milk company; that he was at the time in the employ of the milk company and acting within the scope of his employment; that on the day in question he had driven the milk wagon belonging to the Polk Sanitary Milk Company up in front of the Linder residence, and, after collecting from Mrs. Linder, and while on the front steps preparatory to returning to his truck, he observed two women, appellee and a Mrs. Bierrault, nearby engaging in an altercation; that the controversy which incited the altercation between the two women had no connection whatsoever with the business of the appellant milk company, nor the discharge or performance of any duty incumbent upon Schaeffer, as its agent, to perform; that Schaeffer then left the steps and walked over to the two women and attempted to and did separate them and thereafter proceeded to his truck parked in the street in front of the Linder residence; that while Schaeffer was proceeding to the truck, appellee picked up some stones and threw them at him and persisted in throwing stones at him upon his arrival at the truck, whereupon he said: "If you take and throw another one I will come out after you"; that appellee then threw another stone at Schaeffer, whereupon he left the truck, grabbed her, and, after much scuffling, left her, returned to his truck, and proceeded on his way; that the injuries of which appellee complains were the result of the acts and conduct of said Schaeffer as heretofore stated.
The evidence further discloses, beyond dispute, that appellee was not a customer of the appellant milk company, and in no manner was she or her presence on the day in question connected with the business of the appellant milk company nor with the performance of any act necessary in the discharge of any duty by their employee, Schaeffer; that neither the controversy and altercation between appellee and Mrs. Bierrault, nor the subsequent controversy and altercation between appellee and Schaeffer, were necessary in the furtherance of any business of the milk company. The whole affray between appellee and Mrs. Bierrault was entirely foreign to the business of the appellant milk company and the line of duty to which Schaeffer was...
To continue reading
Request your trial