Rogahn v. Moore Mfg. & Foundry Co.

• Decision Date: 05 May 1891
• Citation: 79 Wis. 573,48 N.W. 669
• Court: Wisconsin Supreme Court
• Parties: ROGAHN v. MOORE MANUFACTURING & FOUNDRY CO.

79 Wis. 573

48 N.W. 669

ROGAHN

v.MOORE MANUFACTURING & FOUNDRY CO.

Supreme Court of Wisconsin.

May 5, 1891.

Appeal from circuit court, Milwaukee county.

Williams, Friend & Bright, for appellant.

M. N. Lando, for respondent.

COLE, C. J.

The question presented on this appeal is, does the complaint state a cause of action against the defendant corporation? If it does, the order of the circuit court, under the established practice here, must be affirmed. The complaint, in substance, states that the plaintiff was working for the defendant company at the time of the injury complained of, pursuant to an employment made with one Beaman, who was the foreman of the defendant, having the right and power to engage and discharge men in the foundry department; that the plaintiff was ordered by Beaman to do certain work, which he refused to do; that Beaman then discharged him, and directed him to leave the shop at once, which the plaintiff said he would do as soon as he could get ready; that the foreman, to hasten plaintiff out of the shop, “maliciously, wickedly, and forcibly commenced to push and kick the plaintiff,” and finally assaulted and struck him numerous blows in the face, and caused the plaintiff to fall, and thereby he broke his leg. This is the substance of the complaint, and it is insisted that it fails to state a cause of action against the defendant, because it does not show nor allege that the foreman had authority to eject or remove a discharged workman forcibly from the shop, or that he acted within the scope of his employment when he thus assaulted the plaintiff. It is said the master is responsible for the acts of his servant only where such acts are committed within the scope of the servant's authority, or where the master sanctions and ratifies the servant's act. If the foreman was authorized by the company to discharge workmen, he might lawfully use such reasonable force as was necessary to remove the discharged men from the shop. This would be necessarily implied from the nature of the authority given to him. There has been much discussion in the courts as to how far the master is liable for the torts of his servant, and many nice distinctions have been made; but it is generally agreed that for the negligent or wrongful acts of the servant in the line of his duty, for which the master would be liable if the act were done by himself, the master is responsible. This principle is illustrated and applied in numerous cases found in the books. Now, suppose the corporation had been a natural person, who had selected a foreman, and given him authority to engage and discharge workmen, would not the principal have authority to forcibly eject a workman from the shop who refused to leave when ordered to do so; and, if the principal might use necessary force to eject the discharged man, could not the foreman in charge of the shop do the same thing, and would it not be in the scope of his employment so to act? It seems to us the question must be answered in the affirmative. The case stated in the complaint would seem to stand on the same principle,--that a person shall be answerable for an injury which is done in the execution of that which he has employed another to do. In other words, the wrongful act is properly charged to be the act of him who has authorized it to be done. Of course, we must assume in this case, upon the complaint, that an excessive...