Shannessy v. Walgreen Co.

• Decision Date: 06 February 1945
• Docket Number: Gen. No. 43146.
• Citation: 59 N.E.2d 330,324 Ill.App. 590
• Parties: SHANNESSY v. WALGREEN CO.
• Court: United States Appellate Court of Illinois

324 Ill.App. 590

59 N.E.2d 330

SHANNESSY

v.WALGREEN CO.

Gen. No. 43146.

Appellate Court of Illinois, First District, First Division.

Feb. 6, 1945.

Appeal from Superior Court, Cook County; Frank M. Padden, Judge.

Action by James D. Shannessy against Walgreen Company, for injuries sustained by plaintiff in defendant's store as a result of an assault by the manager of the store. From a judgment for plaintiff, the defendant appeals.

Reversed.Lord, Bissell & Kadyk, of Chicago (Leonard F. Martin and Guy C. Baltz, both of Chicago, of counsel), for appellant.

Boyle, Morrissey & Wagner, of Chicago (John S. Kavanaugh and Charles A. Boyle, both of Chicago, of counsel), for appellee.

NIEMEYER, Presiding Justice.

Defendant appeals from a judgment for $6,000 entered against it in an action for injuries sustained by plaintiff in a store of the defendant as a result of an assault by the manager of the store.

The law governing the case was stated by this court in Shein v. John R. Thompson Co., 225 Ill.App. 490, as follows: ‘We understand the rule to be that in order to make a master liable, it is necessary to show, first, that the tortfeasor was the servant of the defendant; second, that such relationship existed at the time of the injury; and third, that such relationship existed with respect to the particular transaction from which the tort arose. Johanson v. William Johnston Printing Co., 263 Ill. 236 ,’ and in the case of Metzler v. Layton, 373 Ill. 88, 91, 25 N.E.2d 60, 61, cited by plaintiff, where the court said ‘the negligence of the servant is imputable to the master, if the relation existed at the time and in respect to the transaction out of which the injury arose.’

The evidence is without conflict. Defendant offered no testimony as to the occurrence. Waugh, the manager of the store, was not in the employ of defendant at the time of the trial and was said to be in the Navy. The altercation between the manager and plaintiff occurred in the early morning between 3 and 4 o'clock; on the preceding evening plaintiff and his companion, Coffey, were at a public dance hall until shortly after midnight; they then went to a restaurant where they had something to eat and then to a bar where they played the 26 game and had about half a dozen bottles of beer each; they left the bar about 3:30 in the morning and went to defendant's store where they had some coffee and waited for a street car; as they were getting ready to leave, plaintiff went to the lavatory, and in his absence the manager said to Coffey, ‘I just as soon you didn't come in. Every time he comes in here he causes trouble. The last time he was in here he stole a hot water bottle or electric heating pad. If he comes in here again I will hit him with a baseball bat.’ Coffey insisted that the manager was wrong in making charges against the plaintiff, paid the bill and left with plaintiff immediately on the latter's return from the lavatory; when they got out on the street Coffey said to plaintiff, ‘That fellow doesn't like you very much. He accused you of stealing a hot water bottle or electric heating pad.’ Coffey testified that plaintiff started right back into the store again and that he followed plaintiff because he didn't want any trouble. Plaintiff testified that he did not go back to buy anything, but because of the remark that Coffey had told him about; that he wanted to verify it and went back for the purpose of straightening it out; when plaintiff re-entered the store the manager was arranging merchandise about 15 feet from the door; before plaintiff had said anything the manager said, ‘You get the hell out of here,’ and plaintiff replied, ‘This is a public store;’ the manager came toward plaintiff, picked up a bat and struck plaintiff three times, breaking his arm; Coffey stopped the fourth blow and, with plaintiff, left the store.

The controlling question is whether the relation of master and servant existed between defendant and its manager in respect to the occurrence out of which plaintiff's injury arose. Defendant concedes that the manager was charged with the duty of protecting the property of defendant entrusted to his care from theft or damage, but contends that this duty extended only to present theft or damage or the employer's property and not to the correction or redress of prior wrongs, and that in this case the manager was not acting within either the express or implied authority of his position in commenting on the alleged trouble previously caused by plaintiff and plaintiff's alleged theft of merchandise on a prior visit to the store, in threatening to hit plaintiff with a baseball bat if he again entered the store and in executing the threat.

The cases relied upon by plaintiff are cases in which the employee was attempting to protect the property of the employer from present injury or to recover property just stolen. In Metzler v. Layton, supra, the office manager of defendant had been placed in a closet by robbers seeking defendant's money and other property; on hearing the outer door close the manager emerged from the closet and, in immediate pursuit of the robbers, mistakenly shot the plaintiff. In Central Motor Co. v. Gallo, Tex.Civ.App., 94 S.W.2d 821, the man in charge of defendant's repair department lost his temper and assaulted a customer during a discussion regarding work done on plaintiff's automobile and the rectifying of any work which might be found defective. In Bearman v. Southern Bell Tel. & Tel. Co., 17 La.App. 89, 134 So. 787, plaintiff and other boys had entered the garage of defendant, where the only employee on duty was engaged in the repair of a tire, and were wasting gasoline of the defendant and interfering with and annoying the employee, who ordered the boys to leave and on refusal whipped the plaintiff. The court commented upon the...