Shinabarger v. Phillips

Decision Date09 May 1963
Docket NumberNo. 66,66
Citation121 N.W.2d 693,370 Mich. 135
PartiesGlen SHINABARGER, Plaintiff and Appellee, v. Jack PHILLIPS, Defendant and Appellant, Charles Phillips, Defendant.
CourtMichigan Supreme Court

Marshall, O'Brien & Fischer, Lansing, for defendant and appellant, Jack Phillips.

McAra & Palmer, Flint, for plaintiff and appellee; Robert P. Keil and Richard C. Fruit, Flint, of counsel.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff sued for damages resulting from a beating inflicted upon him by defendant Charles Phillips on the gasoline station premises of the latter's father, defendant Jack Phillips. A jury returned a $3,000 verdict for plaintiff against both defendants. From judgment entered on that verdict the father, defendant Jack Phillips, appeals. The son, defendant Charles Phillips, has not appealed.

Appellant says that the main issue on this appeal is whether the defendant son was an employee of defendant father on the night in question and, if so, acting within the scope of his employment when he beat plaintiff.

As developed by the pleadings and the proofs on which appellant relies, the facts are as follows: The father owned and operated the gasoline station, but, on the occasion here involved, was away on a trip. He left the station in charge of two employees named Campbell and Ritter. The son was not and never had been an employee of the father. At the time, he was an employee of a contractor in a nearby city. Ritter was in charge of the station that night. The business at the station was selling gasoline, oil, etc., but not renting out tools. Tools sometimes were loaned to others at the station, but no charge was ever made therefor. The son testified at trial that he was not working for his father and had no authority from his father to rent tools to others or to charge for the use thereof. On the night in question plaintiff borrowed tools from Ritter to fix the belt of an automobile of friends of his who were stopped there. He returned the tools to Ritter. The son then appeared on the scene and plaintiff made a statement to him which irritated him. The son then told Ritter that he was going to charge plaintiff 50cents for use of the tools. Ritter told him not to do so. The son, nevertheless, did demand 50cents from plaintiff for rental of the tools. Over defendants' objections testimony went in to show that plaintiff then wanted to call the father about it, but the son told him that he was boss while his father was out of town. An altercation followed in which plaintiff received the injuries because of which this suit was brought. The father denied that the son was acting for him or had any authority from him so to do. Plaintiff testified that on previous occasions he had seen the son in the station and been waited on by him, both for gasoline and for service; that he had seen both the father and the son wait on customers, and had been at the station when only the son was present. The father admitted, in testimony, that the son had on occasions waited on customers in the station as his other 3 sons also had done.

Defendant father made motions for directed verdict on the ground that no agency between him and his son was shown and the further ground that, if shown, the assault by the son was a willful tort not shown to have been committed within the scope of such agency. To denial of the motions appellant assigns error. He urges that there was insufficient evidence on the points to go to a jury or to support its verdict for plaintiff.

We hold that there was sufficient evidence thereon to go to a jury and that we are not in accord with appellant's position, if it be such, that the verdict is against the great weight of the evidence.

Plaintiff relies on implied agency, citing Weller v. Speet, 275 Mich. 655, 267 N.W. 758. While implied agency was not found to exist in that case, a test therefore was expressed in the opinion to the effect that implied authority must rest upon acts and conduct of the alleged agent known to and acquiesced in by the alleged principal prior to the incident at bar. Quoted with approval therein is the following from 2 C.J. p. 436:

'An implied agency must be based upon facts, and facts for which the principal is responsible; and upon a natural and reasonable, but not a strained, construction of those facts.'

We think that, superimposed upon the plaintiff's knowledge of the father and son relationship between defendants, the fact that he had seen the son wait on customers at the service station in the presence of his father afforded a reasonable basis for an implied agency and was sufficient to allow a reasonable inference by the jury that such agency existed. In addition to that, from the son's attempt to make plaintiff pay for use of the father's tools, which could properly be viewed as being in furtherance of the father's business, a reasonable inference could also be drawn that it was within the scope of that apparent employment. At least, the jury might well conclude that the son acted within the apparent scope of his authority. It follows that appellant was not entitled to a directed verdict, that a jury question was presented, and that the verdict was not against the great weight of the evidence.

An employer may be liable even for the tortious acts of an employee if done while acting within the scope of the employment. See Guipe v. Jones, 320 Mich. 1, 30 N.W.2d 408, in which this Court said:

'As authority for the proposition that an employer is liable for injuries resulting from an assault inflicted by an employee while acting within the scope of his employment see: Canton v. Grinnell, 138 Mich. 590, 101 N.W. 811; Zart v. Singer Sewing Machine Co., 162 Mich. 387, 127 N.W. 272; Moffit v. White Sewing Machine Co., 214 Mich. 496, 183 N.W. 198.'

In Anderson v. Schust Co., 262 Mich. 236, 247 N.W. 167, a suit for damages resulting from negligent driving of...

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22 cases
  • People v. Kirtdoll
    • United States
    • Michigan Supreme Court
    • April 16, 1974
    ...99, 106--107 (1941); 21 M.D.L.Rev. 22, 36 (1961); 37 Albany L.Rev. 579, 581--584 (1973). But see Shinabarger v. Phillips, 370 Mich. 135, 141--142, 121 N.W.2d 693 (1963). See also, then Judge Levin, concurring in Fisher v. Hatcher, 44 Mich.App. 541, 548, 205 N.W.2d 913, (1973) where he said,......
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    ...acknowledged or at least acquiesced in by the alleged principal. These factors were reiterated by the Court in Shinabarger v. Phillips, 370 Mich. 135, 139, 121 N.W.2d 693 (1963). Specifically, an implied agency “must rest upon acts and conduct of the alleged agent known to and acquiesced in......
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