Wells v. Northern Indiana Public Service Co.
| Decision Date | 15 April 1942 |
| Docket Number | 16783. |
| Parties | WELLS v. NORTHERN INDIANA PUBLIC SERVICE CO. |
| Court | Indiana Appellate Court |
George Sands, of South Bend, for appellant.
McInerny & Huguenard, of South Bend, for appellee.
Appellee as a part of its business, furnished appellant's home with gas for fuel purposes. One Lawrence Moore was employed by it to read, at regular intervals, the gas meter located in the basement of appellant's home. Prior to July 11, 1939 Moore had read the meter several times and at such times had seen appellant's dog and developed a dislike for it. He had even argued with her that she should not keep the animal. However, it had never harmed him or manifested any intention of harming him.
On July 11, 1939, Moore went to appellant's home and was admitted to the kitchen through which he had to pass to go to the basement. Appellant asked him to wait until she brought the dog up from the basement, which he did. Appellant brought the dog up and Moore again argued with appellant that she should not keep the dog. At no time did the dog growl or bark or manifest any intention of harming Moore. Nevertheless without provocation, Moore struck at the dog with a flashlight he was carrying. He missed the dog but accidentally struck appellant on the leg causing her injury.
Appellant brought this action against appellee charging that she was injured by the negligent act of its servant Moore in hitting her when striking at the dog. At the conclusion of her evidence the trial court directed the jury to return a verdict for the defendant. This action of the trial court is the alleged error presented here, necessary procedural steps to present it having been taken.
The principal question for our determination is whether, at the time he struck at the dog and hit appellant, Moore was within the scope of his employment by appellee.
Appellant by the evidence which she introduced, including her own testimony, makes it clear that when Moore struck at the dog he was not acting in self-defense, real or imagined, or in any manner engaged in his work of meter reading. The dog was not in his pathway to obstruct his progress to the basement. Appellant's evidence leaves no doubt that Moore was motivated solely by his dislike for the dog.
The applicable rule is thus stated at page 526, Section 235, of The Restatement of the Law of Agency: "An act of a servant is not...
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