Porter v. Grennan Bakeries, 33795.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: The opinion of the court was delivered by: Peterson
• Citation: 16 N.W.2d 906,219 Minn. 14
• Parties: PORTER v. GRENNAN BAKERIES, Inc., et al.
• Docket Number: 33795.
• Decision Date: 22 December 1944

16 N.W.2d 906

219 Minn. 14

PORTER
v.
GRENNAN BAKERIES, Inc., et al.

No. 33795.

Supreme Court of Minnesota

December 22, 1944

Rehearing Denied Jan. 4, 1945. [16 N.W.2d 907]

3. Where it is sought to charge the master under the doctrine of respondeat superior with liability for an assault committed by his servant, it is not error to exclude evidence to charge the master with personal fault in retaining the employe in his employment.

4. Under Minn.St.1941, s 597.12 (Mason St. 1927, s 9831), a party is entitled to read a deposition taken on behalf of his adversary; but [219 Minn. 15] the exclusion of the deposition here was not prejudicial because its admission would not have affected the result.

5. A ruling excluding evidence, in which appellant acquiesced at the trial and which he did not assign as error in his notice of motion for a new trial, will be sustained on appeal.

7. Where plaintiff is not entitled as a matter of law to recover, the trial court should direct a verdict for defendant.

8. Points not argued are waived.

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Maugridge S. Robb, of Minneapolis, for appellant.

Cummins & Cummins, of St. Paul, for respondent.

PETERSON, Justice.

Plaintiff sued to recover damages for the loss of an eye sustained as the result of an assault committed upon him on August 21, 1942, [219 Minn. 16] by the defendant Smith. Liability on the part of the defendant Grennan Bakeries, Inc., is predicated upon the doctrine of respondeat superior, it being claimed by plaintiff that the assault was committed by Smith for and on behalf of Grennan and within the course and scope of his employment. The answer in so far as here material denied that the assault was committed within the course and scope of the employment.

The evidence adduced showed that plaintiff was employed as a cake and bread salesman by the Continental Baking Company; that the defendant Smith was employed as a cake salesman by the defendant Grennan Bakeries, Inc.; that plaintiff and Smith used trucks owned by their respective employers to deliver the products sold by them; that each had a definite sales territory assigned to him by his employer and that their territories overlapped. The assault was committed in the grocery store of one Hussey located in the territory common to both plaintiff and Smith.

It appeared that many grocers were customers of both Continental and Grennan. It was the practice of grocers to display bread and cakes on racks. It is undisputed that the grocers controlled the racks and that arrangements for space thereon were made by the bakery salesmen and the grocers. Where a grocer was a customer of more than one bakery, he allotted space thereon to each bakery for the display of its goods. The location and the amount of space were regarded as important advertising advantages and were keenly sought by the salesmen. While the racks were under the control of the grocers and salesmen were required to make arrangements with them for space, in practice they often encroached on each other's space and interfered with each other's arrangement and display of his products. The manner of conducting the sales brought the salesmen into keen competition with each other and produced considerable hard feelings and friction.

The defendant Smith, feeling aggrieved and angered because of what he considered encroachment on his space and interference by plaintiff with his display rights in some stores served by them, determined to put [16 N.W.2d 908] an end to the alleged wrongs. To this end, he [219 Minn. 17] sought plaintiff, whom he found in Hussey's store. Hussey was a customer of Continental but not of Grennan. At that time plaintiff was in Hussey's store selling him Continental products in the course of his employment. Smith had no purpose in going into Hussey's store except to adjust his differences with plaintiff. It is undisputed that, when he entered Hussey's store, Smith cursed and swore at plaintiff and accused him of taking too much space on racks shared by them in other stores. In order to avoid having trouble in the store, plaintiff suggested that he and Smith step outside. After they got outside, Smith again cursed and swore at plaintiff, renewed his accusations, and told plaintiff to take off his glasses. Plaintiff asked Smith what he meant, and Smith thereupon said, 'Here is a sample of it,' and hit plaintiff in the eye, causing injuries necessitating its removal.

Plaintiff's claim is that Smith assaulted him not out of anger but for the purpose of executing his duties as Grennan's employe to maintain and protect its rights on the racks in various stores and to further its business by thereby enabling it the better to sell its products. Defendant Grennan claimed that committing assaults upon competitors was not within the scope of Smith's employment and that, when he entered Hussey's store for the purpose mentioned, he entirely departed therefrom. To show that the scope of the employment included the acts in question, plaintiff offered to show that Smith was a surly, troublesome fellow who had considerable trouble with salesmen of other companies concerning rack space; that one of them put an end to his troubles with Smith only by threats to 'beat' him; and that such facts were known to Grennan. The testimony was offered 'in support of our (plaintiff's) contention that it was the duty of these drivers to take care of those racks and see that they got plenty space on them.' The testimony was ruled out as immaterial.

Plaintiff's offer to read a deposition of one Rusinko, a police officer, taken in behalf of the defendant Smith, was ruled out upon defendants' objection. Deponent's testimony tended to show that Smith admitted that he committed the assault in the manner and [219 Minn. 18] for the reason shown by the testimony taken orally at the trial. When Smith was called for cross-examination under the statute, the trial judge inquired of plaintiff's counsel the purpose in calling him and informed counsel that he could inquire concerning Smith's relationship with his employer, but that it was not permissible to do so as regards the affray, to which counsel responded, 'I wasn't intending to touch upon that.' No exception was taken to the ruling, and it was not assigned as error in the notice of motion for a new trial. At the close of plaintiff's case, defendant Grennan was permitted, over plaintiff's objection, to rest provisionally for the purpose of moving for a directed verdict, which was granted upon the ground that the assault was not committed by Smith in the course of and within the scope of the employment.

Plaintiff had a verdict against Smith and appeals. On the appeal plaintiff contends that the trial court erred (1) in holding that the assault was not committed within the course and scope of Smith's employment; (2) in ruling out testimony relative to Smith's prior acts and Grennan's knowledge thereof to show that the assault in question was committed in the course of and the scope of the employment; (3) in ruling out the Rusinko deposition; (4) in limiting the cross-examination of Smith; (5) in granting Grennan leave to rest provisionally to make a motion for a directed verdict; (6) in granting the motion; and (7) in ruling out a conversation between Grennan's former supervisor and plaintiff.

1. There was considerable argument whether our rule that the master is liable for his servant's torts, including assaults, committed within the scope of the employment, regardless of whether he was authorized expressly or impliedly to use force ^[*] , was modified [219 Minn. 19] by our decision in Plotkin v. Northland Transp. Co., 204 Minn. 422, 283 N.W. 758. It is not necessary now to answer that question. Quite aside from anything said in the Plotkin case, the [16 N.W.2d 909] rule definitely is that a servant is not within the scope of his employment when he is not doing what he was employed to do and when he departs from the area of his service. Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L.R.A.,N.S., 598; Shipp v. Georgia Power Co., 67 Ga.App. 867, 21 S.E.2d 458; 1 Restatement, Agency, s 345, Comment b. Here, the employment included within its scope the selling of cake to Grennan's customers in their stores and obtaining from the grocers, not other salesmen, the best possible display space on the racks. The commission of assaults upon competitors was neither authorized nor contemplated. When Smith was in and about Hussey's store, he was not engaged in selling cake to Grennan's customers or arranging with them for display space. He was not there doing anything he was employed to do. The area of Smith's service included travel over his route and the stores of Grennan's customers. When he went to Hussey's store, he departed from the space limits of his employment. He was then where he was not authorized to be. Consequently, Smith was not within...