Singer Sewing Mach. Co. v. Phipps

• Decision Date: 18 April 1911
• Docket Number: No. 7,203.,7,203.
• Citation: 49 Ind.App. 116,94 N.E. 793
• Parties: SINGER SEWING MACH. CO. v. PHIPPS.
• Court: Indiana Appellate Court

49 Ind.App. 116

94 N.E. 793

SINGER SEWING MACH. CO.

v.PHIPPS.

No. 7,203.¹

Appellate Court of Indiana, Division No. 1.

April 18, 1911.

Appeal from Circuit Court, Floyd County; W. C. Utz, Judge.

Action by Nellie Phipps, by her next friend, Susan Read, against the Singer Sewing Machine Company. From a judgment for plaintiff, defendant appeals. Affirmed.Charles L. Jewett and Henry E. Jewett, for appellant. Evan B. Stotsenburg, John H. Weathers, and Paris & Trusty, for appellee.

IBACH, J.

Appellee, Nellie Phipps, brought this action in the Floyd circuit court to recover damages for an alleged assault and battery committed upon her by appellant's agent, Louis J. Beach.

The facts briefly are as follows: Susan Read, the mother of appellee, leased a sewing machine from the appellant company under a written agreement of conditional sale. This agreement gave the appellant the right, if default in payment was made, to regain possession of the machine, without recourse to law. The evidence shows that Mrs. Read made default in payment, and that she kept her outer door locked to prevent the sewing machine agent entering to take the machine. The agent kept watch of the premises, and when one Kraft, the probation officer of Floyd county, entered her house to see appellee, Beach and another agent of appellant entered. To prevent them from removing the machine, appellee seated herself upon it. The assault and battery complained of was made, as alleged, by appellant's agent, Beach, tipping the machine and raising one end of it from the floor, thus throwing appellee to the floor; and, in consequence of the injuries suffered, after three weeks she gave premature birth to a child.

The complaint was in two paragraphs, to each of which appellant's demurrer was overruled. The cause was put at issue by the general denial. The jury found answers to 26 interrogatories, and gave a general verdict in favor of appellee, assessing her damages at $1,000. Appellant then moved for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict, which motion was overruled. Appellant's motion for a new trial was overruled, and judgment rendered against it for the full amount of the verdict.

Nine assignments of error are made: (1) In overruling the demurrer to the first paragraph of complaint; (2) in overruling the demurrer to the second paragraph of complaint; (3) in sustaining the motion to strike out and suppress part of the deposition of appellant's witness, Louis J. Beach; (4) in overruling the motion of appellant for judgment in its favor on the answers to interrogatories; and the remaining five in overruling the motion for a new trial, on the grounds that the verdict was not sustained by sufficient evidence, that the court erred in giving instructions requested by appellee, that the court erred in refusing to give instructions requested by appellant, and that the damages were excessive.

The first paragraph of complaint is as follows: “Plaintiff complains of the defendant, and says that on the 4th day of January, 1908, the defendant was a corporation duly organized and acting under the laws of New Jersey, and that on the said date one Louis J. Beach was then and there the servant and agent of said defendant, and on said date, while so acting as such servant and while acting in the line of his duty as such, and within the scope of his employment, did, on the said day, at the city of New Albany, in said county of Floyd, state of Indiana, wrongfully and unlawfully make an assault on this plaintiff, and did wound, injure, and bruise her, whereby and by reason of which plaintiff became sick and gave premature birth to a child, and was unable to perform any work for three months, and was permanently injured.”

The second paragraph sets forth the same facts more particularly, averring the character of Beach's agency and the manner of committing the assault alleged.

Appellant urges that the first paragraph is insufficient as merely stating the conclusion of the pleader from facts undisclosed that Beach, in the line of his duty and within the scope of his employment, committed an assault and battery on appellee.

[1] It is elemental under our Code that a complaint must state facts and not conclusions. But in Wabash Railway Company v. Savage, 110 Ind. 159, 9 N. E. 85, the court held an averment sufficient that the defendant, acting through its agents and servants, injured the plaintiff, because this averment is equivalent to an averment that the injury was inflicted by the defendant, acting through its duly authorized agents and servants. This paragraph of the complaint in the case before us charges an assault and battery committed by appellant's agent while performing his duty as such, and by construction of law it is made the appellant's assault. There can be no doubt of its sufficiency, and it then became a question of evidence as to whether the person who performed the acts charged was the agent of defendant, and was acting at the time within the line of his duties. See, also, Citizens' St. Ry. Co. v. Clark, 33 Ind. App. 191, 71 N. E. 53, 104 Am. St. Rep. 249;Oakland City, etc., Society v. Bingham, 4 Ind. App. 545, 31 N. E. 383.

[2][3] The plaintiff is not bound to plead facts which are peculiarly within the knowledge of the defendant, such as the extent of the authority of his agent. Louisville, etc., R. Co. v. Crunk, 119 Ind. 546, 21 N. E. 31, 12 Am. St. Rep. 443. And it is sufficient in pleading to state the issuable facts without setting forth the evidence by which they are to be proved. Feighner v. Delaney, 21 Ind. App. 37, 51 N. E. 379;Indiana Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646.

The same objections urged against the first paragraph are urged against the second, but, having determined the first to be sufficient, the second, which in large measure supplies the elements which appellant claims are lacking in the first, is likewise sufficient. The relation of principal and agent existed at the time of the alleged assault between the appellant and Beach, and the doctrine of respondeat superior obtains.

[4] A corporation is liable in the same manner as an individual to respond in damages for a tort committed by its agent in the line of his employment and within the range of his authority. Such responsibility rests upon the theory that the principal authorized the wrongful act either expressly or by implication. This seems to be the rule well recognized by the courts of the land.

The test in all similar cases seems to have been, Was the act complained of committed within the general scope of the agent's employment, and with the object in view of accomplishing that employment, or some portion thereof? If so, the employer will be answerable, “though the act be ill-advised, malicious, and against his express order.” Wood, Master and Servant, pp. 593, 594; Pittsburgh, etc., R. Co. v. Kirk, 102 Ind. 399, 1 N. E. 849, 52 Am. Rep. 675;Rounds v. Delaware, etc., R. Co., 64 N. Y. 129, 21 Am. Rep. 597;Grand Rapids, etc., Ry. Co. v. King, 41 Ind. App. 701-704, 83 N. E. 778.

[5] In the case before us the agent was authorized to enter the home of appellee and take possession of the machine in question; the appellant thereby permitted him to determine the manner and method of obtaining such possession, and it is therefore responsible for his misjudgment or misconduct; and, if he used such force as to injure appellee in carrying out the object or regaining the machine in question, that being the purpose of going to her house, the result of such conduct will fall upon appellant.

Appellant also assigns error in sustaining appellee's motion to strike out the following part of the deposition of appellant's witness, Louis J. Beach: “Q. Did Mrs. Read at any time offer to redeem the machine? A. Some two months afterwards she tendered me $3, and as I objected she said she would make trouble for the Singer Sewing Machine Company, and that she would make it cost them more than the price of the sewing machine.” The reason assigned for striking out was that what occurred between the defendant and Mrs. Read after the cause of action had arisen was immaterial. Appellant claims this evidence proper for the purpose of showing the animus of the witness Mrs. Read towards appellant.

[6] The answer was not responsive to the question, but was a mere volunteer statement. Appellant had a right to show hostility of the witness, but did not at the trial offer this evidence for such purpose.

[7] In order to impeach a witness upon the ground of hostility, the foundation must be first laid before the testimony becomes competent. Jackson v. Swope, 134 Ind. 111, 33 N. E. 909. A proper foundation would have been laid by first putting the question concerning the statement to the witness on cross-examination, and then, if denied,...