Princeton Coal Co. v. Dowdle

• Decision Date: 08 February 1924
• Docket Number: No. 23912.,23912.
• Citation: 194 Ind. 262,142 N.E. 419
• Court: Indiana Supreme Court
• Parties: PRINCETON COAL CO. v. DOWDLE.

194 Ind. 262

142 N.E. 419

PRINCETON COAL CO.

v.DOWDLE.

No. 23912.

Supreme Court of Indiana.

Feb. 8, 1924.

Appeal from Circuit Court, Gibson County; Thos. Duncan, Special Judge.

Action by Robert L. Dowdle against the Princeton Coal Company and another. Judgment for plaintiff, and named defendant appeals. Reversed, with directions.Embree & Embree, of Princeton, for appellant.

T. M. McDonald, of Princeton, for appellee.

EWBANK, C. J.

Appellee sued appellant and one Frank Buchanan for damages for personal injuries alleged to have been inflicted by an assault and battery, and recovered a verdict against both of them for $6,500, on which the judgment appealed from was based. Overruling appellant's demurrer to the complaint and its motion for a new trial are assigned as errors.

The complaint alleged that defendant company (appellant) owned and operated a coal mine, in which it employed as mine superintendent its codefendant, Buchanan, and gave to him the sole and exclusive charge and control of its said mine, with the right, power, and authority to exclude and eject from its premises any and all persons whose presence thereon he might consider detrimental or prejudicial to the best interests of his said employer; that plaintiff (appellee) was employed by the miners in said coal mine as check weighman, when a dispute arose between said miners and the defendant company concerning the weighing of coal dug from said mine and checked by plaintiff; that for the purpose of adjusting the dispute plaintiff went at the request of said miners by whom he was employed “to the office of said defendants at said mine”; that defendants, by and through said Buchanan, ordered plaintiff to leave the premises of the defendant company, which he refused to do “until his said business was completed,” whereupon “defendants by and through said Buchanan undertook to eject plaintiff from said premises, and *** assaulted and struck plaintiff with a pick handle *** over the head with such force and violence as to fracture plaintiff's skull,” and inflict certain injuries; that plaintiff offered no resistance and made no threats of violence against defendants and offered no violence to them; and that by reason of his said injuries plaintiff was damaged $20,000. Appellant's demurrer was for the alleged reason that the complaint did not state facts sufficient to constitute a cause of action, with memoranda charging that it failed to allege facts showing that in striking the blow Buchanan was acting in the line of his duties as superintendent of appellant's mine, or was acting for or on behalf of appellant, but that it showed, on the contrary, that in striking plaintiff he turned aside from his service as superintendent, and acted wantonly and willfully in carrying out a purpose of his own.

[1] By way of answer to these objections appellee relies on the averments that Buchanan was a servant of the defendant company to whom was given sole and exclusive charge and control of its premises, and that when plaintiff went upon such premises “defendants, by and through said Buchanan, ordered the plaintiff to leave the premises,” and, upon his refusal to do so, “said defendants by and through said Buchanan *** assaulted and struck plaintiff with a pick handle,” as carrying the necessary implication that if the defendant company did the alleged acts “by and through Buchanan,” its alleged servant in charge of the premises, they were within the scope of his duties and authority, however imperfectly the facts may have been stated from which the alleged conclusion was drawn that the defendant company did them by the hand of its servant. There was no motion to make the complaint more specific, and we are persuaded that it was sufficient in the particular challenged, as against a demurrer for want of facts. Section 343a, Burns' Supp. 1921, § 1, chapter 62, Acts 1915, p. 123.

After the demurrer was overruled appellant answered by a denial and by a special plea averring that the alleged assault and battery occurred in the store of the Princeton Merchandise Company, of which said Buchanan was a shareholder, agent, officer, and manager, in an attempt by Buchanan as such representative of the Princeton Merchandise Company to remove him when plaintiff refused to depart after being notified to do so because he was quarrelsome and boisterous. Plaintiff replied by a denial, and the cause was tried on the issues thus joined.

[2] While the plaintiff, as mere matter of pleading, was only required to state ultimate facts, and might be indulged in substituting an implied conclusion that the servant acted within the scope of his authority for facts showing the nature and extent of his authority, and that the act complained of was done on behalf of the employer, within such authority, evidence to establish facts out of which a liability on the part of the employer would arise was essential in order to recover damages from such employer because of an act done by the servant. Pittsburgh, etc., R. Co. v. Adams, 25 Ind. App. 164, 173, 56 N. E. 101;Kohl v. H. P. Lenhart F. Co., 58 Ind. App. 7, 9, 106 N. E. 399;Oakland City, etc., Soc. v. Bingham, 4 Ind. App. 545, 550, 31 N. E. 383;Smith v. Louisville, etc., R. Co., 124 Ind. 394, 400, 24 N. E. 753;Louisville, etc., R. Co. v. Kendall, 138 Ind. 313, 315, 36 N. E. 415;Evansville, etc., R. Co. v. Baum, 26 Ind. 70, 72;Louisville, etc., R. Co. v. Gillen, 166 Ind. 321, 324, 76 N. E. 1058;Fisher v. Fletcher (Ind. Sup.) 133 N. E. 834, 22 A. L. R. 1392. “It is not questioned that a tortious *** act resulting in injury, if done by an agent acting not within the course of his employment, is not the subject of recovery against the principal. Indeed, it is too well settled to admit of question that under such circumstances there can be no recovery.” Louisville, etc., R. Co. v. Kendall, 138 Ind. 313, 315, 36 N. E. 415, 416, citing authorities.

The complaint “in effect averred that it was the defendant, acting through its agents and servants, which had injured the plaintiff. That was equivalent to an averment that the injury was inflicted by the defendant, acting through its duly authorized agents and servants. That made it at the trial a question of evidence as to whether the persons who performed the acts charged to have been injurious to the plaintiff were the agents and servants of the defendant, and acting at the time within the lines of their respective duties.” Wabash R. Co. v. Savage, 110 Ind. 156, 159, 9 N. E. 85. Where defendant's servant had committed an assault and battery at the direction of a constable holding a writ of replevin, the court said:

“One of the material allegations of the complaint is that appellee committed an assault and battery on appellant by and through the act of its servant while acting in the line of his duty and within the scope of his employment. *** There was no proof of the material allegation aforesaid, nor was there any evidence from which the fact might properly be inferred by the jury. There was therefore a total failure of proof to support a material allegation of the complaint. The court did not err in directing a verdict for the defendant.” Kohl v. H. P. Lenhart, 58 Ind. App. 7, 9, 106 N. E. 399.

That the complaint merely stated a cause of action in general terms, without alleging the specific facts relied on to support such general averments, and that there was no motion to make it more specific, did not excuse plaintiff from the necessity of...