Sandman v. Hagan

• Decision Date: 14 November 1967
• Docket Number: No. 52709,52709
• Parties: Jerry SANDMAN, Appellant, v. William V. HAGAN and Charles A. Striegel, d/b/a Beane Plumbing and Heating Co., and Andrew Montagne, Appellees. Andrew Montagne, Cross-Appellant.
• Court: Iowa Supreme Court

Page 113

154 N.W.2d 113

261 Iowa 560

Jerry SANDMAN, Appellant, v. William V. HAGAN and Charles A. Striegel, d/b/a Beane Plumbing and Heating Co., and Andrew Montagne, Appellees Andrew Montagne, Cross-Appellant.

No. 52709.

Supreme Court of Iowa.

Nov. 14, 1967.

Rehearing Denied Jan. 8, 1968.

Runge & Runge, Sioux City, for appellant.

E. L. Moran and Shull, Marshall, Marks & Vizintos, Sioux City, for appellees William V. Hagan and Charles A. Striegel, d/b/a Beane Plumbing and Heating Co.

Harry H. Smith, Sioux City, for appellee and cross-appellant Andrew Montagne.

LARSON, Justice.

It appears from the record that on November 7, 1963, the plaintiff Jerry Sandman, employed by the Sioux City Sewer Department, was directed to inspect a job at 2213 Pierce Street in Sioux City, Iowa, and arrived on the job between 8 and 9 A.M. His duty that particular morning was to inspect the installation, the hookup, and the backfill of the connection to the city water system being done by Beane Plumbing and Heating Co., hereafter referred to as the employer. The defendant Montagne and two other employees of Beane Plumbing and Heating Co., Lloyd Brunssen and Martin Wilde, were doing the actual work. A hole had been dug in the street approximately three to four feet wide, five feet long, and six feet deep. The installation and hookup had been completed and the backfill operation involving the refilling of the hole was awaiting the arrival of Sandman. In this operation a small quantity of dirt is first dumped into the excavation and then this dirt must be firmly tamped beneath the water pipe and main. This process is repeated until there is sufficient dirt under the pipe and main so that there is no gap between the dirt and the main. If a gap is present, in time this could cause the water main to come apart and undermine and wash out the pavement. Inspector Sandman was there to see that the dirt was properly compacted under the main by the installing workmen. At the time of this incident defendant Montagne was on the street helping scoop dirt into the hole with a hand shovel. Lloyd Brunssen was in the hole spreading the dirt and tamping it under the pipes, and Martin Wilde was on the street near the hole attending his front-end loader tractor. An air compressor nearby that powered a pneumatic tamper was running during this time, which made it difficult to hear conversations in the area.

Sandman testified he was observing the backfill operation from above when he noticed that dirt had not been properly compacted under the main, and he brought this to the attention of Brunssen. Not being satisfied with the results of his directions, he jumped down in the hole to show Brunssen that there was a void under the main.

Brunssen testified that Sandman had said nothing to him about improper backfilling, but rather jumped into the hole with him and began shoving dirt into a gap under the main. Both testified that no altercation or abusive language occurred until Sandman had demonstrated to Brunssen that there was indeed a gap between the main and the ground. At this point Sandman testified that Brunssen called him an s.o.b. and other derogatory names, told him to get out of the hole, and said he had no business down there. Brunssen admitted that he reprimanded Sandman for using the employer's tools and testified that Sandman said he could use them any time he wanted to and that if Brunssen didn't like it he could take it up with the labor union at the city hall.

Immediately following this name-calling, a fight took place between Sandman and Brunssen. Sandman testified that to the best of his recollection he struck Brunssen only once and that the fight lasted about two minutes. Brunssen testified that he did not strike Sandman, but doubled up to protect himself and that Sandman struct him several times on the face and body, and that the fight lasted about 15 to 30 seconds.

Montagne testified that he did not hear the conversation between Sandman and Brunssen prior to the fight because the noisy air compressor was running at the time, that the first thing he knew Sandman was pounding on Brunssen and he yelled at Sandman to stop but that he did not stop, and that he (Montagne) became scared that Brunssen might be hurt. Montagne then struck Sandman on the back of the head with a shovel. Although Sandman testified he saw Montagne swing the shovel at him, he did not hear Montagne say anything to him before he got hit with the shovel.

Martin Wilde testified that he saw Sandman striking Brussen about the head and neck, that this lasted about 10 or 15 seconds, and that while Sandman was striking Brunssen he heard Montagne yell at Sandman to stop. He also said Sandman then looked up at Montagne and called him an s.o.b. and asked him if he wanted some too. It was then that Montagne struck Sandman with the shovel. Both Montagne and Wilde testified that Sandman was bleeding immediately after the blow. Wilde described the blow that struck Sandman as not a sideswipe but said the shovel came straight down a distance of two and a half to three feet and struck Sandman, whose head was a few inches below the pavement level. Montagne, however, said the blow came from the side and that the shovel could have been raised above his shoulder.

Brunssen testified that he was not aware until later Montagne had struck Sandman with the shovel and, when he noticed that Sandman was bleeding, he thought it was because Sandman had struck his head on the concrete around the hole.

After he was struck with the shovel, Sandman climbed out of the hole and said he asked for help and that the employees told him there was a phone booth on 20th and Pierce. Brunssen testified that Sandman did not ask for help, but walked off down the street without saying a word to anyone.

It further appears there was a dispute between Sandman and Montagne over another backfill job two weeks before, in the presence of the employer's foreman. At that time Sandman said Montagne picked up a shovel and gave it a toss and it careened off the tires of a machine some distance away. The alarmed foreman asked what was the matter, retrieved the shovel, and proceeded to do the work of tamping himself. Montagne got out of the hole entirely.

At the close of plaintiff's evidence the trial court denied motions for a directed verdict by both defendants. The jury returned a verdict for Sandman against all defendants. On motion by the employer, the trial court granted judgment notwithstanding the verdict for it, concluding there was insufficient evidence to sustain a finding that Montagne was acting within the scope of his employment. The trial court denied Montagne's motion for a new trial based upon his claim of insufficient evidence to sustain a verdict in the sun allowed and prejudicial errors in trial procedure. Plaintiff appeals from the granting of the employer's motion, and the employee cross-appeals.

The sole issue presented on appeal by appellant Sandman is whether at the time in question employee Montagne was acting within the scope of his apparent authority so as to make the defendant employer liable and sustain the jury determination on that issue.

The trial court concluded there was no evidence to sustain a finding that Montagne's authority extended beyond that of putting in water lines and refilling excavations, or that his duties contemplated conflict with others, or that the assault was done in the furtherance of the employer's business or interests within the scope of his employment. We must agree.

I. It is well established in Iowa that under the common law the master and servant may each and both be liable for a servant's torts committed within the course of employment. Graham v. Worthington, Iowa, 146 N.W.2d 626, 640; Montanick v. McMillin, 225 Iowa 442, 452--459, 280 N.W. 608; Hobbs v. Illinois Cent, R. Co., 171 Iowa 624, 152 N.W. 40.

The difficulty encountered by various courts in cases of willful torts committed by servants has resulted in irreconcilable decisions, and unless carefully scrutinized, the authorities seem to be in hopeless confusion. See 34 A.L.R.2d 367 for list of many cases. The difficulty is in defining and applying the concept of acts within the course of employment or the scope of the servant's authority. These terms are often used loosely and not carefully analyzed. Even the text writers seem to have trouble relating the servant's duty and authority to scope of employment and, due to various decisions, use the words, 'implied', 'apparent', and 'actual authority', to expand or diminish the duty of the servant upon which liability rests when courts seek evidence as to whether the tort was committed in the furtherance of the employer's business or interests.

It has been said an act is 'within the scope of the servant's employment' where such act is necessary to accomplish the purpose of the employment and is intended for such purpose, although in excess of the powers actually conferred on the servant by the master. Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81. As bearing thereon see Dougherty v. Chicago, M. & St. P. Railway Co., 137 Iowa 257, 114 N.W. 902. Also, for other definitions, see Words and Phrases, Permanent Edition, and 34 A.L.R.2d 367.

It is safe to say that 'within the scope of the employment' requires that the conduct complained of must be of the same general nature as that authorized or incidental to the conduct authorized. Maddex v. Ricca, D.C., 258 F.Supp. 352; Plotkin v. Northland Transp. Co., 204 Minn. 422, 283 N.W. 758. The facts in the Kentucky Wood case and the Minnesota Plotkin case are not greatly different. Both result in no employer liability. In each case, after an altercation with another vehicle on the highway, the bus company driver stopped his bus and assaulted the operator of the other vehicle. Both courts recognize the rule that to determine whether an agent's act is within the scope of employment so...