Robinson v. McAlhaney

• Decision Date: 28 September 1938
• Docket Number: 115.
• Citation: 198 S.E. 647,214 N.C. 180
• Parties: ROBINSON v. McALHANEY et al.
• Court: North Carolina Supreme Court

198 S.E. 647

214 N.C. 180

ROBINSON v. McALHANEY et al.

No. 115.

Supreme Court of North Carolina

September 28, 1938

Appeal from Superior Court, Buncombe County; Felix E. Alley, Judge.

Action by Bernice Lorene Robinson, by her next friend, Mrs. Irene Robinson, against L. F. McAlhaney and Jack Hewitt to recover damages for assault. From order by superior court granting a new trial, the plaintiff appeals.

Affirmed.

In action for assault by an alleged employee, instructing that the circumstances may have been such as to warrant implication that codefendant was acting under authority of defendant if defendant saw him working and did not stop him or that if defendant saw codefendant about to commit the assault and did nothing to prevent it the law would imply that codefendant was acting for defendant, was error.

This is a civil action instituted in the General County Court of Buncombe County to recover damages for the wrongful and malicious assault upon the plaintiff by the defendant Hewitt it being alleged that said defendant was at the time acting as the agent and employee of the defendant L. F. McAlhaney.

There was judgment for the plaintiff in the General County Court. The defendants, assigning error, appealed to the Superior Court.

The defendant L. F. McAlhaney was in possession of a piece of property known as the Cherokee Tourist Home located on the waters of Oconaluftee River, at the entrance to the Great Smoky Mountains National Park in Swain County. There were a number of cabins on the property, one of which was occupied by the plaintiff and her mother and sister. The defendant McAlhaney, operated the Cherokee Tavern, including dining room, a souvenir shop, a filling station and rooms, and in connection therewith employed Jack Hewitt. Plaintiff's mother went to Asheville, leaving furniture and other personal property in the cabin occupied by her. The defendant McAlhaney sent a truck and driver with helpers to move out the personal property left by plaintiff's mother and to place other furniture therein. The plaintiff and her sister objected. Thereupon Mr. Bryson, who was operating the truck, went to find Mr. McAlhaney. As he was away he spoke to Mr. Hewitt, who told him that he would have to wait until Mr. McAlhaney returned. Upon Mr. McAlhaney's return he went to the cabin with Dan Bryson, went in the cabin and began to direct the removal of the furniture. Hewitt followed and began to move the furniture from the porch to the truck. Plaintiff forbade the defendant Hewitt to enter the cabin. In the altercation which followed Hewitt struck the plaintiff.

In the County Court issues were submitted to and answered by the jury as follows:

"1. Did the defendant Hewitt assault the plaintiff, as alleged in the complaint? Answer: 'Yes.'

2. If so, was the defendant Hewitt at the time of the assault, and in making said assault, acting as the duly authorized agent of his co-defendant, L. F. McAlhaney? Answer: 'Yes.'

3. What amount, if any, is plaintiff entitled to recover as compensatory damage? Answer: '$1,000.00.'

4. What amount, if any, is plaintiff entitled to recover as punitive damage? Answer: '$100.00."'

When the cause came on to be heard in the Superior Court, the Court below sustained certain exceptive assignments of error made by the defendants and ordered a new trial, except as to the first issue. The plaintiff excepted and appealed.

Weaver & Miller and Irwin Monk, all of Asheville, for appellant.

Dan K. Moore, of Sylva, Baxter Jones, of Bryson City, and Jones, Ward & Jones, of Asheville, for appellees.

BARNHILL Justice.

This cause came on to be heard in the Court below on questions of law raised by the defendants' exceptive assignments of error as provided by the act creating the General County Court of Buncombe County. There were 47 assignments of error made by the defendants upon their appeal from the General County Court. Of these the Court below sustained twenty-five and overruled the others.

In the instant case the Court below acted as an intermediate court of appeals and it was necessary for it to rule upon all of defendants' assignments of error. However, it is not necessary for us to discuss all of the questions presented on plaintiff's appeal. Disposition of two of the assignments of error requires the affirmance of the judgment below. The others may not again arise on the re-trial of the cause.

The judge of the General County Court declined to instruct the jury as requested by the defendants as follows: "The Court charges the jury that where the servant steps aside from his master's business for however short a time to commit a wrong not connected with such business the relation of master and servant will be deemed for the time suspended and that the master is not liable therefor." Instead, on this aspect of the case, the Court charged the jury: "Now, if you find from the evidence by the greater weight, the burden being on the plaintiff to so satisfy you that at the time the assault was committed the defendant, Hewitt, was acting under the direction and authority of the defendant McAlhaney, either express or implied; that is, the circumstances may be such as to warrant an implication that he was acting under his authority if he saw him there working and did not stop him, or if he saw him about to commit the assault and did not interfere and intervene to prevent it the law would imply that the defendant Hewitt was acting for him. Or, if you find from the evidence, and the greater weight of the evidence, that he was expressly instructed, as the plaintiff contends that he was, to help these furniture men move the furniture into the cabin, then he would be acting within the scope of his employment and that would constitute him the agent for the purpose of helping to move the furniture in and would authorize you to answer the issue 'Yes"'.

The master is liable for the negligence and for the malicious torts of his employee whenever such wrongs are committed by the employee in the course of his employment and within its scope. Ange v. Woodmen of the World, 173 N.C. 33, 91 S.E. 586; Jackson v. Telephone Co., 139 N.C. 347, 51 S.E. 1015, 70 A.L.R. 738; Munick v. Durham, 181 N.C 188, 106 S.E. 665, 24 A.L.R. 538. The decisive question is: "Was the agent's act in the course of his employment and whilst about the master's business?" No ironclad test can be given, but in all cases the question whether the act was committed by the servant in the service of his employer or for his own purpose is one for the jury in view of all the circumstances. Wood, Master and Servant, 594; Hussey v....