Thompson-Starrett Co. v. Heinold, 4847.
| Decision Date | 05 August 1932 |
| Docket Number | No. 4847.,4847. |
| Citation | 60 F.2d 360 |
| Parties | THOMPSON-STARRETT CO. v. HEINOLD. |
| Court | U.S. Court of Appeals — Third Circuit |
Howard Burtt and Guckes, Shrader, Burtt & Thornton, all of Philadelphia, Pa., for appellant.
Isabel Drummond, Charles H. Drummond, and Henry J. Scott, all of Philadelphia, Pa., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a judgment of the District Court for the Eastern District of Pennsylvania upon a verdict for the plaintiff below. The plaintiff brought suit in trespass against Fred Dominic and Thompson-Starrett Company to recover damages for personal injuries sustained as the result of an alleged willful, malicious, wanton, and unprovoked assault and battery committed upon the plaintiff by Dominic. Thompson-Starrett Company was the general contractor for work upon the Penn Athletic Club building in Philadelphia. Dominic was an employee of the Thompson-Starrett Company, and the plaintiff was an employee of a subcontractor. On December 18, 1925, Dominic, who was about to set up a water trough for the mixing of mortar in the part of the building in which the plaintiff was working, ordered the plaintiff to remove himself and his equipment to another location. When the plaintiff failed to comply with this order, Dominic committed the complained-of assault by striking the plaintiff on the head with a lead pipe.
Upon the first trial the judge directed a verdict for the defendant, Thompson-Starrett Company. Dominic did not appear, and the case against him was not submitted to the jury. Subsequently a new trial was granted as to the defendant, Thompson-Starrett Company. The plaintiff then filed a præcipe ordering the suit as against Dominic discontinued and ended, and filed an amended statement setting out his claim against Thompson-Starrett Company as sole defendant. The case was called for trial upon the issue between the plaintiff and Thompson-Starrett Company only. The jury found a verdict for the plaintiff. The defendant's motion for a new trial was denied, and judgment was entered on the verdict.
The defendant contends that an employer cannot be held responsible in damages for a willful, malicious, wanton, and unprovoked assault and battery committed by an employee, where there is no evidence that the employee was acting under instructions or with the knowledge or consent of the employer in making the assault.
It is undisputed that in the early cases a master was held not liable for the tortious act of his servant, when the act was wanton and malicious. In later cases, the master is held liable for the wrongful act of the servant, notwithstanding its wanton and malicious character, if the act was done in the course and within the scope of his employment, and the determination of the question whether the tort was committed while the servant was acting in the course and within the scope of his employment is for the jury.
In Cooper v. American Stores Co., 97 Pa. Super. Ct. 474 (1929), a clerk of the American Stores Company was sweeping the store. He ordered the plaintiff, a young girl, to leave the store, and, when she failed to do so, he struck her upon the head with the broom. The defense was that the assault and battery was a malicious act which took it outside the clerk's line of duty. The appellate court ruled that the question whether the assault and battery was committed in the course and within the scope of the clerk's employment, was properly submitted to the jury.
In Durando v. Philadelphia Rapid Transit Co., 80 Pa. Super. Ct. 65 (1922), during a dispute which arose between a passenger upon defendant's trolley car and the conductor concerning a transfer, the conductor struck the passenger on the head with a blackjack. The court held that the question whether the conductor's conduct was personal...
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...Lake Shore etc. Ry. Co. v. Rosenzweig, supra; Young v. Pennsylvania R. Co., 1886, 115 Pa. 112, 7 A. 741. And see Thompson-Starrett Co. v. Heinold, 3 Cir., 1932, 60 F.2d 360; Vannatta v. Tolliver, 82 Pa.Super. 546, at page 548; Jackson v. Fort Pitt Hotel Inc., 162 Pa. Super. 271 at page 273,......
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Sandman v. Hagan
...takes no part. BECKER, Justice. I dissent as to plaintiff's appeal from judgment in favor of defendant employer. Thompson-Starrett Co. v. Heinold (1932, C.A.3d Pa.) 60 F.2d 360, involves a situation where an employee hit the employee of a subcontractor with a lead pipe when the plaintiff di......
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... ... Cf. Booth v. Dorsey, supra; also ... Thompson-Starrett Co. v. Heinold, 60 F.2d 360, 361 ... (C.C.A. 3) ... The ... remaining defendant was ... ...
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Draper v. Olivere Paving & Const. Co.
...ceased to act as a servant and permitted his own personal animosity to take over. It was a question for the jury. In Thompson-Starrett Co. v. Heinold, 3 Cir., 60 F.2d 360, it was held that the master was liable for the wanton and malicious act of the servant if committed within the scope of......