Tulsa General Drivers, Warehousemen, and Helpers Union, Local No. 523 v. Conley

• Decision Date: 11 October 1955
• Docket Number: No. 36606,No. 523,523,36606
• Citation: 1955 OK 277,288 P.2d 750
• Parties: 28 Lab.Cas. P 69,493, 1955 OK 277 TULSA GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS UNION, Local, an unincorporated association, Plaintiff in Error. v. Fred CONLEY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 750

288 P.2d 750

28 Lab.Cas. P 69,493, 1955 OK 277

TULSA GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS UNION Local No. 523, an unincorporated association Plaintiff in Error. v. Fred CONLEY, Defendant in Error.

No. 36606.

Supreme Court of Oklahoma.

Oct. 11, 1955.

Syllabus by the Court.

1. Where plaintiff's evidence fails to establish that defendant's servant at the time and place of the assault and battery complained of, was acting within the scope of his employment, it is the duty of the trial court to sustain defendant's demurrer to plaintiff's evidence or defendant's request for an instructed verdict in its behalf.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Action by Fred Conley against Tulsa General Drivers, Warehousemen and Helpers Union, Local No. 523, an unincorporated association, et al., to recover compensatory and punitive damages for an assault and battery committed by an alleged agent of defendant union. Judgment for plaintiff and defendant union appeals. Reversed with directions.

Ungerman, Whitebook, Grabel & Ungerman, William Leiter, Tulsa, for plaintiff in error.

Harold S. McArthur, Tulsa, for defendant in error.

PER CURIAM.

Plaintiff filed this action in the District Court of Tulsa County, on October 4, 1951, alleging in substance that one Lassiter was a member of defendant, Tulsa General Drivers, Warehousemen and Helpers, Local No. 523, and was their agent; that plaintiff was an employee of Gates Hardware Company located at 317 East Brady, Tulsa, Oklahoma; that the premises thereof were being picketed by defendants; that at the noon hour on April 11, 1951, plaintiff left said premises, crossed the picket line composed of Lassiter and another picket and went to 211 South Elgin, Tulsa, Oklahoma; that Lassiter followed plaintiff to said place and there assaulted plaintiff with a board 1 X 2 inches, 24 inches long, studded with nails; that as a result of such assault plaintiff sustained injuries, etc., for which he was hospitalized; praying for $25,000 actual damages, and for $10,000 exemplary damages for malice and oppression of Lassiter and said defendant union.

Defendant union answered by way of general denial. Although Lassister was sued as a defendant, service was not obtained upon him and this cause was tried as against defendant union and Perry Shryock, secretary-treasurer of said defendant union. Upon the issues thus drawn trial was had to a jury which resulted in a verdict and judgment for plaintiff against defendant union in the sum of $1,000 actual damages and $2,000 exemplary damages. From this judgment, defendant union appeals.

At the close of plaintiff's evidence, defendant union and defendant Perry Shryock, interposed a demurrer upon the grounds that the evidence, together with all reasonable inferences deduced therefrom were wholly insufficient to sustain a cause of action; that the evidence affirmatively shows that there is no agency existing; and further reason that the evidence reveals that the act took place at a location four and one-half blocks away from where the picketing was taking place, and therefore there was a complete departure from any possible act of agency, or within the scope of the alleged agent's authority. Said demurrer was sustained as to the defendant Perry Shryock but overruled as to defendant union.

At the close of all the evidence, defendant union moved for a directed verdict upon the grounds as recited in its demurrer under plaintiff's evidence. The motion for a directed verdict was likewise overruled by the trial court.

On and for some period of time before April 11, 1951, the plaintiff was an employee of Gates Hardware Company, located at Elgin and Brady streets in the city of Tulsa; approximately five weeks prior to said date, the defendant, Don Lee Lassiter, who was then an employee of said company, together with another employee, a person by the name of Moser, was discharged from such employment. On the day following the discharge of Lassiter and Moser, one Robert J. Smart, business representative of defendant union, called upon Mr. George Gates, one of the owners of Gates Hardware Company, and requested the re-employment of Lassiter and Moser. Upon refusal of this request he informed Gates that a picket line would be established immediately. Either that afternoon or the next day such picket line was established and during the course of the picketing both Lassiter and Moser were participants in same. During the course of such picketing, which lasted for about eight weeks, the said Lassiter made various and sundry threats against the employees of Gates Hardware Company, at such times inviting them out to fight and using very obscene language in his berating of them. Shortly after the picket line was established a member of the Tulsa Police force was detailed to duty there, and was on duty at all times the picket line was in force. This police officer testified that he took the names of all pickets, and that he obtained such names from their union cards; that Lassiter was one of those whose name was taken from such union card. He also testified that he observed the union representative, Smart, at the picket line during the course of the picketing on at least eight different times. On the above date of April 11, 1951, the plaintiff, during the noon hour left the Gates Hardware Company, and proceeded to the Tom White Tire Company located at 211 South Elgin, some 4 1/2 blocks away for the purpose of paying on an account he owed to the Tom White Tire Company. Upon leaving the Tom White Tire Company the said Lassiter stepped up from behind him, and with a 1 X 2 board, approximately 3 feet long, from which a nail was protruding, assaulted and struck the plaintiff about the head and shoulders, knocking plaintiff to the pavement and inflicting upon him various and sundry abrasions including a skull fracture, from which plaintiff was hospitalized. During the course of the beating of plaintiff two patrol car officers of the Tulsa Police force arrived on the scene and placed the said Lassiter under arrest. He was taken to the police station where complaint was lodged against him by plaintiff prior to plaintiff's going to the hospital. On that same afternoon the said Lassiter again appeared as a picket in the picket lines at the Gates Hardware Company. He remained as such picket for a few days after that.

Plaintiff testified that the said Lassiter had been employed by Gates Hardware Company about six months prior to the establishment of the picket line; that he, plaintiff, was an order clerk, and Lassiter was an order clerk; that he assisted Lassiter in learning the stock and prior to the establishment of the picket lines was on good terms with Lassiter; that they had never before had any trouble; that while Lassiter was working for Gates he showed plaintiff his union card and some application blanks for membership. He did not say whether or not Lassiter ever asked him to become a member of the union.

After the trial court overruled defendant's d...