Schultz v. Brown

• Decision Date: 03 March 1919
• Docket Number: 3143.
• Citation: 256 F. 187
• Parties: SCHULTZ v. BROWN.
• Court: U.S. Court of Appeals — Ninth Circuit

256 F. 187

SCHULTZ v. BROWN.

No. 3143.

United States Court of Appeals, Ninth Circuit.

March 3, 1919

W. B Rodgers, of Anaconda, Mont., and Henry G. Rodgers, of Dillon Mont., for plaintiff in error.

Maury Wheeler & Melzner and A. G. Shone, all of Butte, Mont., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is an action for damages for personal injuries inflicted upon John Brown, the defendant in error, by one Dimitre Heinz, a servant of Otto Schultz, the plaintiff in error.

At the time of the injury, Schultz was the owner of a large band of sheep and employed Heinz as his herder. Schultz was also the owner of an uninclosed tract of land about three miles from Silver Star, in Madison county, Mont. To this tract of land a band of sheep owned by Schultz was driven by Heinz, the herder, about the 14th of October, 1916. A few days before this time, Brown, who was herding a band of sheep owned by one Frank Reed, drove his sheep upon the same land. Upon the arrival of Heinz upon the land with the sheep owned by Schultz, he told Brown not to allow his sheep to cross to the north side of a certain creek; that the land on that side of the creek belonged to Schultz. Brown continued to herd his sheep on the north side of the creek until the two bands became mixed, whereupon Elmer Reed, the son of Frank Reed, and one Cowins, the camptender for Schultz, were notified. They came to the place to separate the sheep, and this was accomplished on the morning of October 19, 1916, by the use of a corral; both bands being driven into the corral, and the bands separated by driving out the sheep owned by Schultz and keeping in the corral the sheep owned by Reed. The separation was conducted by Elmer Reed and Cowins. Heinz and Brown drove the sheep through the chute. After the separation had been accomplished, Brown started to the corral to let his sheep out, whereupon Heinz made the assault upon Brown which is the subject of this action.

Elmer Reed testified that he saw the happening of the tort; that he was somewhere around 12 or 15 feet from Brown at the time, and about the same distance from Heinz; that he could overhear the conversation that took place between them; that he could hear Heinz and was talking to him; that he told Heinz Brown must keep his sheep on the other side of the creek; all that Heinz said was that Brown wanted this side of the creek. He did not hear any other statement, and then Heinz struck Brown over the head with a shovel handle, inflicting the injury charged in the complaint. On cross-examination, Reed testified:

'At the time the plaintiff received the injuries, our sheep were in the corral, and Mr. Schultz's sheep were just on the outside. That is Mr. Schultz's land that lies around that corral on that side of the creek. The sheep had been entirely separated at the time Brown received his injuries, and Cowins was up at the barn, I think. There had been no trouble there that morning between any of us; there had been no dispute between Mr. Cowins, Mr. Schultz, and myself; everything had been friendly. Just before the trouble happened, I was talking to Brown about the sheep, showing him where to go, telling him what to do with our sheep when they were taken out of the corral. I told him to go on the south side of the creek, and stay off of Mr. Schultz's land. The corral was on the north side; this land was on both sides of the creek; when I said this to Brown, Dimitra Heinz was opposite me, standing on the opposite side; Heinz had not said or done anything. After I told Brown to take the sheep back on the south side of the creek, and stay away from that place, Heinz said, 'Brown wants this side of the creek.' There was no dispute at that time. Neither Brown nor I were at that time in any way interfering with Mr. Schultz's sheep, or in Heinz's care of Mr. Schultz's sheep. The sheep had been taken to the corral by mutual consent of myself and Mr. Schultz's man, for the purpose of separating them.'

Brown testified that Heinz said, 'Don't let them cross the creek'-- referring to Reed's sheep. Brown says he told Heinz to ask Mr. Reed, to which Heinz appears to have made no reply, but struck Brown over the head with a shovel handle. Cowins was not present when Heinz assaulted Brown. He had gone to the barn to get his horses, and saw none of the fight. After the assault, Heinz crossed the creek, went up the hill towards his camp, and disappeared, and has not been seen since.

This suit, brought by Brown against Schultz for damages for the injury described, is based upon the charge that Heinz, when he committed the assault, was in the employ of Schultz, and was engaged in furthering the business of his master. In a legal sense the charge takes the form that the plaintiff, Brown, was injured by Heinz, a servant of the defendant Schultz, while the servant was acting within the course and scope of his employment.

In 26 Cyc. 1533, under the title of 'Master and Servant,' and the subtitle of 'Liability of the Master for Injuries to Third Persons, ' there is a statement concerning the acts within the scope of employment, with authorities cited in support of the text. The statement is applicable to the question in controversy in this case. It is there said:

'In determining whether a master is liable for the torts of his servants, the most difficult question is whether the particular act or omission of the servant, causing the injury for which the master is sought to be held liable, was committed within the scope of the servant's employment; and this question is in most cases one of fact, to be determined by the jury from the surrounding facts and circumstances. The terms 'course of employment' and 'scope of the authority' are not susceptible of accurate definition. What acts are within the scope of the employment can be determined by no fixed rule; the authority from the master generally being gatherable from the surrounding circumstances. An act is within the scope of a servant's employment, where necessary to accomplish the purpose of his employment, and intended for that purpose, although in excess of the powers actually conferred on the servant by the master.'

With respect to the course and scope of Heinz's employment, it is not claimed that he was employed to assault Brown....