Tauscher v. Doernbecher Mfg. Co.

• Decision Date: 31 March 1936
• Citation: 56 P.2d 318,153 Or. 152
• Parties: TAUSCHER v. DOERNBECHER MFG. CO. et al.
• Court: Oregon Supreme Court

56 P.2d 318

153 Or. 152

TAUSCHER v. DOERNBECHER MFG. CO. et al.

Supreme Court of Oregon

March 31, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Action by Ambrose Tauscher against the Doernbecher Manufacturing Company and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

Defendants held not entitled to new trial on ground of false answer of juror on voir dire examination that he was not acquainted with defendants, where defendants knew that juror was testifying falsely at time he was accepted and raised no objection to his qualifications until after an adverse verdict.

O. A. Neal and Roscoe C. Nelson, both of Portland (Dey, Hampson & Nelson, R. R. Morris, and James C. Dezendorf all of Portland, on the brief), for appellants.

Paul R Harris, of Portland (Davis & Harris and C. W. Robison, all of Portland, on the brief), for respondent.

CAMPBELL Chief Justice.

This is an action for personal injuries alleged to have been received in an assault upon the plaintiff by certain of the defendants.

On the night of June 5, 1933, a few minutes before midnight plaintiff, accompanied by his mother, drove his automobile to the plant of defendant the Doernbecher Manufacturing Company, a corporation. The plaintiff and his mother got out of the car and started to walk around, waiting for the whistle to blow when the men working on that shift would quit working for the day. Plaintiff's brother was superintendent of defendant corporation and his father was working for it. Plaintiff had come to the plant to take his father home. A few minutes before the whistle blew, defendants Heitkemper, Hardt, Rudarmal, Parno, and Foss came out of the plant and ordered plaintiff to leave the grounds. An altercation ensued, resulting in plaintiff's being beaten up and, according to his allegations, badly injured.

Plaintiff alleged that these individual defendants, Heitkemper, Hardt, Rudarmal, Parno, and Foss, "*** were in the employ of the defendants, Doernbecher Manufacturing Company and H. A. Green, for the purpose of guarding and protecting the property and interest of the defendant corporation, and upon said date, while said defendants were acting within the course and scope of their employment, and for the purpose for which they were employed by the defendant corporation and H. A. Green, said defendants wrongfully, wilfully and maliciously set upon the said plaintiff and severely beat him and kicked him upon the head and body, which said conduct was continued for a considerable period of time, and was without cause or provocation on the part of the plaintiff."

Plaintiff also alleged the injuries received; that he was damaged thereby. He further alleged that said injuries were inflicted wantonly and maliciously, and asks for punitive damages.

Defendant corporation and H. A. Green joined in an answer in which they admitted that the defendant H. A. Green was the president and general manager of the defendant corporation and denied all the other material allegations of the complaint.

For a further and separate answer and defense they alleged in effect that plaintiff provoked said assault by calling defendant Rudarmal vile and opprobrious names and by making an assault upon defendant Rudarmal, and that whatever battery said defendant made upon plaintiff was done in self-defense.

Defendants W. Heitkemper, Henry Hardt, Roy Parno, and Rudolph Foss joined in an answer to plaintiff's complaint in which they admitted that on the date of the alleged assault they were in the employ of the defendant corporation, but denied all the other material allegations.

For a further and separate answer and defense they answered to the same tenor and effect as the allegations contained in the further separate answer and defense of defendant corporation and H. A. Green.

Defendant Rudarmal filed his separate answer, in which he denied all the material allegations of plaintiff's complaint and, for a further and separate answer and defense, alleged to the same tenor and effect as that of the defendant corporation and H. A. Green.

The new matter contained in all the answers was denied in the reply.

The cause was tried to a jury, who returned a verdict in favor of the plaintiff and against all the defendants in the sum of $5,000 compensatory damages and the further sum of $3,500 punitive damages, on which judgment was entered.

Defendants seasonably moved the court to set aside the verdict and judgment and for a new trial. The court overruled the motion, and defendants filed appeals in the same order as they filed answers.

1. The defendants raise the question on appeal as to the sufficiency of the complaint as against the appellants Doernbecher Manufacturing Company and H. A. Green.

It will be observed that the plaintiff attempts to hold these two defendants under the doctrine laid down in Fetting v. Winch, 54 Or. 600, 104 P. 722, 38 L.R.A.(N.S.) 379, 21 Ann.Cas. 352, that: A master is responsible for the acts of his servants if the particular act causing the injury be within the scope of, and be done within the exercise of, the servant's delegated authority.

The complaint was not attacked by demurrer nor by motion nor by an objection to the admission of testimony, and for the first time the question of its sufficiency is raised here. The allegation is that, on the day of the assault, the individual defendants, Heitkemper, Hardt, Parno, Foss, and Rudarmal were in the employ of the defendants "Doernbecher Manufacturing Company and H. A. Green for the purpose of guarding and protecting the property and interest of the defendant corporation *** and while said defendants were acting within the course and scope of their employment and for the purpose for which they were employed *** they wrongfully, unlawfully and maliciously" did the acts causing the injury to plaintiff.

Every intendment and reasonable inference is to be indulged in favor of the complaint when its sufficiency is first raised after verdict and on appeal. The evidence admitted without objection tended to show that plaintiff was upon the premises of defendant corporation in the immediate vicinity of its plant, and that these individual defendants were attempting to eject him from the said premises, and supports the allegation that they were performing the duty for which they were employed.

The real test, as laid down in Davis v. Houghtellin, 33 Neb. 582, 50 N.W. 765, 766, 14 L.R.A. 737, "is not whether a given act was done during the existence of the servant's employment, but whether it was committed in the prosecution of the master's business."

In the instant case it was the master's business to keep all intruders off the premises, and an allegation that these individual defendants were employed to carry on that part of the business, with evidence admitted without objection to prove that employment, would render the complaint invulnerable against demurrer first interposed on appeal. Downs v. National Share Corporation (Or.) 55 P.2d 27.

The authorities cited by appellant on this point are not in conflict with the foregoing principle. The object of a complaint is to notify defendants with what they are charged so as to enable them to present their defense to said charges, and the complaint should be deemed sufficient if it discharge this function. "We do not believe that the pleadings misled the plaintiff, nor do we find any indication that the situation denied plaintiff a fair presentation of its case. *** Rules of procedure are merely an avenue of approach." Menefee Lumber Co. v. MacDonald, 122 Or. 579, 260 P. 444, 448. Also see Beach v. Brightwood Co., 132 Or. 345, 285 P. 259.

2 and 2a. At the close of plaintiff's case in chief, counsel moved for an involuntary nonsuit in behalf of defendant H. A. Green. Again, at the close of all the evidence in the case, he moved for a directed verdict in favor of said defendant. Both motions were overruled, and this assignment of error is based on that ruling.

The complaint alleged that the other individual defendants who actively committed the assault were, at the time, in the employ of the defendant corporation and of H. A. Green. It further alleged that this employment was to protect the plant and interest of defendant corporation. They were not hired to do anything for defendant Green. The evidence shows that they were in the employ of the defendant corporation only. Defendant Green was not present at the time the assault was committed, nor is there any evidence that he, in any way, aided or abetted or counselled or procured the commission of the assault. There is no allegation or evidence of a conspiracy. The evidence shows that defendant Green was the general agent of defendant corporation, and that these other individual defendants were hired for and on behalf of the defendant corporation. This is not a variance between the allegations and the proof, but a total lack of proof on an essential averment. It is not an attack on the sufficiency of the complaint, but a test of the sufficiency of the evidence to support the allegations of the complaint. The court instructed the jury on this point as follows: "If you find from the evidence that the last named defendant employees, or some of them, unlawfully and unjustifiably assaulted and beat the plaintiff, then the defendant Green would be liable only provided you further find that he authorized, directed or advised the assault to be made."

This instruction does not remedy the matter. There being no evidence to support the allegations of the complaint that the defendants who actually committed the assault were in the employ of defendant Green, the court by instructions could not supply essential...