Stewart v. Napuche, 9

• Decision Date: 02 June 1952
• Docket Number: No. 9,A,9
• Citation: 53 N.W.2d 676,334 Mich. 76
• Parties: STEWART v. NAPUCHE. pril Term.
• Court: Michigan Supreme Court

Page 676

53 N.W.2d 676

334 Mich. 76

STEWART v. NAPUCHE.

No. 9, April Term.

Supreme Court of Michigan.

June 2, 1952.

Michael A. Guest, Detroit, for plaintiff and appellee.

Griffiths, Williams & Griffiths, Detroit (Helen Theut Bevens, Detroit, of counsel), for defendant and appellant Napuche.

Before the Entire Bench.

SHARPE, Justice.

Plaintiff, Edgar Stewart, brought an action in the Circuit Court of Wayne County against defendants James Miner and Christo Napuche, for injuries suffered while a guest in defendant Christo Napuche's tavern in the city of Detroit, Michigan. From a judgment in favor of plaintiff defendnat appeals.

It appears that on June 4, 1949, plaintiff, after having visited several bars, arrived at defendant Napuche's place about 4:30 P. M. He was served beer by an attendant, and by defendant Napuche. Defendant Miner came on duty at 5:00 P. M., and shortly thereafter defendant Napuche left to go to his home. At or about the hour of 6:00 P. M., plaintiff asked Miner for another bottle of beer and was refused. At this time plaintiff had consumed eighteen bottles of beer during the afternoon. Upon being refused another bottle of beer plaintiff made some remark to Miner, which apparently angered Miner to the extent that he came from behind the bar and struck plaintiff. Defendant Miner testified:

'I had a conversation with Mr. Stewart. We just had a few words and I goes around and picks him up--after having a few short words. I hit Stewart, then I walked around the end of the bar very quickly, picked him up, using a full Nelson--that is a wrestling grip--and started to take him out when someone in the bar interfered, and I put more pressure on his neck; that must have been when I hurt him.

'At no time during that time do I remember Mr. Stewart threatening to strike me; he may have used one or so curse words, I don't remember. That didn't bother me, I hear that every day. I struck him in an attempt to get him out of the place. I didn't want him in there. I wanted him out of there because he was highly intoxicated and was going to cause trouble, I thought.'

As a result of this altercation plaitniff was severely injured, and lost approximately five months' work and incurred hospital and doctor bills. The cause came on for trial before the court without a jury. At the close of plaintiff's proofs Napuche's attorney made a motion for a directed verdict, basing his reasons on the claims that Miner was not acting within the scope of his authority when he committed the assault upon plaintiff. The trial court denied the motion, and at the close of all testimony rendered judgment in favor of plaintiff in the sum of $7,500. Subsequently defendant, Christo Napuche, made a motion for a new trial, based upon the following:

'4. Because the evidence failed to establish that the injury complained of was inflicted by the defendant Miner within the scope of his agency as an employee of the defendant Napuche;' This motion was denied and defendnat, Christo Napuche, appeals.

In law cases tried before the court without the aid of a jury, we do not reverse the judgment based on findings of fact of the trial court, unless the evidence clearly preponderates in the opposite direction. It is a general rule that the master is liable for the acts of a servant while the servant is 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; Martin v. Jones, 302 Mich. 355, 4 N.W.2d 686, and Guipe v. Jones, 320 Mich. 1, 30 N.W.2d 408.

It is also the rule that if the servant uses more force than he was authorized to use in evicting a party from his master's premises, the master is liable. In Cook v. Michigan Central Railroad Co., 189 Mich. 456, 155 N.W. 541, we quoted with approval from Robards v. P. Bannon Sewer Pipe Company, 130 Ky. 380, 113 S.W. 429, 18 L.R.A.,N.S., 923, 132 Am.St.Rep. 394:

'The master who puts the servant in the place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.' [189 Mich. 456, 155 N.W. 543.]

It was further said in this connection that:

'Furthermore, the law, under...