Son v. Hartford Ice Cream Co.

• Decision Date: 30 June 1925
• Citation: Son v. Hartford Ice Cream Co., 129 A. 778, 102 Conn. 696 (Conn. 1925)
• Court: Connecticut Supreme Court
• Parties: SON v. HARTFORD ICE CREAM CO.

129 A. 778

102 Conn. 696

SON v. HARTFORD ICE CREAM CO.

Supreme Court of Errors of Connecticut.

June 30, 1925

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Action by Louis Son against the Hartford Ice Cream Company to recover damages for the act of the defendant's servant in assaulting and beating the plaintiff.Judgment for plaintiff and defendant appeals.No error.

William E. Egan, of Hartford, for appellant.

Jacob Schwolsky, of Hartford, for appellee.

BEACH J.

The defendant is a manufacturer of ice cream.Plaintiff, a shop keeper, had for some time been receiving ice cream delivered by defendant's truck driver, whose instructions were to collect the price on delivery.On the date in question the plaintiff refused to receive the ice cream, claiming that it was not properly iced.Defendant's servant insisted on leaving it, and when plaintiff refused to pay for it undertook to take the price out of plaintiff's cash register.Plaintiff succeeded in locking the cash drawer of the register, and defendant's servant then attempted to carry away the cash register bodily.This led to a struggle for its possession, in the course of which the plaintiff was kicked and severely beaten by defendant's truck driver and his helper.

Defendant's instructions to this and other drivers were to use no force in making collections, but in case of dispute to call defendant's office.

The sole question on this appeal is whether on the facts found the defendant is liable in damages for the injuries thus inflicted on the plaintiff; defendant's claim being that, especially in view of the driver's disobedience of the defendant's order not to use violence, the assault was not an act done in the execution of the defendant's business, and that it was not an act within the scope of the servant's employment.

The liability of a master to answer in damages for the consequences of his servant's torts may rest on one of three grounds, stated as follows in Stone v. Hills,45 Conn. 44, 47, 29 Am.Rep. 635:

" The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible."

The earlier cases including our own, held that a master was not liable for the willful torts of his servants without proof of the master's assent or approval, on the ground that it would not be presumed without such proof that the commission of a willful tort was an act done within the scope of the servant's employment.McManus v. Crickett, 1 East, 106;Wright v. Wilcox,19 Wend. (N. Y.) 343, 32 Am.Dec. 507;Church v. Mansfield,20 Conn. 284;Thames Steamboat Co. v. Housatonic R. R. Co.,24 Conn. 40, 63 Am.Dec. 154;Crocker v. Railroad Co.,24 Conn. 250.

On the other hand, it now seems plain enough that the liability of a master for his servant's torts is quite independent of the master's assent to or approval of the tortious act; and also that the rule respondeat superior is not applicable upon any theory which does not make it applicable to a willful as well as to a negligent tort.It may be more difficult for a plaintiff to sustain the burden of proving that a willful, as distinguished from a negligent, injury was inflicted while the servant was upon the master's business, and acting within the scope of his employment; but when these conditions are shown to exist there is no satisfactory reason for holding a master, who is himself free from fault, liable for his servant's lapses of judgment and attention, which does not also apply to the servant's lapses of temper and self-control.

Accordingly, the well settled modern rule is that stated in Mott v. Consumers' Ice Co.,73 N.Y. 543:

" That for the acts of the servant, within the general scope of his employment, while engaged in his master's business, and done with a view to the furtherance of that business and the master's interest, the master will be responsible, whether the act be done negligently, wantonly, or even willfully."Huffcut on Agency, § 252;26 Cyc. p. 1528;18 R. C. L.p. 807;Matsuda v. Hammond,77 Wash. 120, 137 P. 328, 51 L.R.A. (N. S.) 920;15 Second Decennial Digest, p. 1713, 302.

In the following cases cited on plaintiff's brief the defendants were held liable in damages for assaults committed by servants.Gerstein v. C. F. Adams Co.,169 Wis. 504, 173 N.W. 209;Moffit v. White Sewing Mach. Co.,214 Mich. 496, 183 N.W. 198;Birmingham Macaroni Co. v. Tadrick,205 Ala. 540, 88 So. 858;Zart v. Singer Sewing Mach. Co.,162 Mich. 387, 127 N.W. 272;Sturgis v. Kansas City Rys. Co.(Mo. App.)228 S.W. 861;Bayles v. Schwalbach Cycle Co.,4 A.D. 589, 38 N.Y.S. 492;Bergman v. Hendrickson,106 Wis. 434, 82 N.W. 304, 80 Am.St.Rep. 47;Levi v. Brooks,121 Mass. 501.

Our own decisions have kept pace with this development of the law.The rule quoted from Stone v. Hills applies to " all acts done by a servant * * * in the execution of the master's business, within the scope of...