Zaitz v. Drake-Williams Mount Co.
| Decision Date | 01 December 1921 |
| Docket Number | 21671 |
| Parties | JOHN ZAITZ, APPELLANT, v. DRAKE-WILLIAMS-MOUNT COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
J. E Von Dorn, for appellant.
Lambert Shotwell & Shotwell, contra.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., BROWN and ELDRED, District Judges.
Plaintiff brought this action for damages alleged to have been received while an employee of defendant Drake-Williams-Mount Company, a corporation. He also joined as a defendant one Otto Starr. The defendant Drake-Williams-Mount Company was engaged in the business of manufacturing tanks and boilers. Defendant Starr was the foreman at the plant at which plaintiff was employed. In the performance of his labors plaintiff took a position in one of the tanks under construction which, according to the view of the foreman, was disadvantageous. The foreman directed plaintiff to take a different position, which the foreman indicated. Plaintiff appears to have resented the suggestion, or direction, of the foreman, and the foreman discharged plaintiff, directing him to report at the office for the money that was due him. Plaintiff thereupon stepped aside from the work, and he claims that, while in the act of putting on his coat preparatory to reporting to the company's office, he was struck by the foreman and severely injured. It is clear that plaintiff was struck by the foreman, but it is claimed on behalf of defendants that the assault was not made in connection with the work or with a view of disciplining plaintiff, but that plaintiff had been angered because of his discharge and called the foreman a vile name, thus provoking the assault. At the close of plaintiff's evidence the court instructed the jury to return a verdict in favor of defendant Drake-Williams-Mount Company, but permitted the case to proceed as against defendant Starr. As between plaintiff and defendant Starr the jury disagreed, and this appeal involves only the ruling of the court on the motion to direct a verdict for defendant Drake-Williams-Mount Company.
For the purpose of this review, we give full credence to the testimony offered by plaintiff. Having done so, does it establish a liability against the employer? Plaintiff contends that the employer is liable for the acts of the foreman, who was in charge of the plant with power to hire and discharge employees. The employer denies that any direction or order to discipline employees had...
To continue reading
Request your trial