Kornec v. Mike Horse Mining Co. , 120 Mont. 1 ( 1947 )

I believe that the majority opinion establishes a questionable precedent in this jurisdiction in the application of the doctrine of respondeat superior. If the factual situation presented here justifies a recovery from the employer, it is difficult to conceive of a case in which a master may not be held responsible in damages for the tortious act of the servant committed during the period of employment.

I have no quarrel with the authorities relied upon in the majority opinion, but cannot agree that they support the decision, on the facts as here disclosed.

It is my view that the motion of the defendant company for a judgment of nonsuit should have been granted; and since the defendants supplied no defects in plaintiff's evidence by the submission of its case after the motion was overruled, that defendants' motion for a directed verdict should have been granted by the trial court.

The vital question, of course, is whether or not the acts of the defendant Marty complained of, which resulted in the alleged injuries, may be characterized as coming within the scope of Marty's employment. Considering plaintiff's testimony alone, it is my view that it may not be so characterized. Plaintiff's testimony discloses that the commencement and continuation of the alleged assault took place entirely on plaintiff's own property, and that at no time during the assault, or immediately prior thereto, was plaintiff on property owned by the defendant company. It is not claimed that the assault took place in any attempted or successful ejection of plaintiff from defendant's property, or to restrain his entry thereupon.

The rule apparently adopted by this court is found in Keller v. Safeway Stores, Inc., 111 Mont. 28, 108 P.2d 605, 610. Therein it is said: "Beyond question it is the rule that the principal is liable for wrongs committed by the agent while acting within the scope of his employment. Fowlie v. Cruse,52 Mont. 222, 157 P. 958; secs. 7965, 7966, Rev. Codes. The rule finds expression in the following language in Harrington v. H.D. Lee Mercantile Co., 97 Mont. 40, 59, 33 P.2d 553, 558: `When the application of respondeat superior is presented, "the decisive question in every instance is whether the agent or employee was, at the time of negligent injury, acting within the scope of his employment. If he acted independently of his employer, or was upon missions or purposes of his own, then the employer is not to be held accountable in damages."'"

In the same case this court apparently approved the rule as set forth in the Restatement of the Law of Agency, section, 229, as follows: "`(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized. (2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: (a) Whether or not the act is one commonly done by servants; (b) the time, place and purpose of the act; (f) whether or not the master has reason to expect that such an act will be done; and (i) the extent of departure from the normal method of accomplishing an authorized result.'"

The court further said: "The fact that an agent in acting for his principal may deviate from express instructions or even act in utter disobedience thereof does not generally relieve the principal of liability if the acts were in furtherance of orincidental to the employment for which the agent was expressly orimpliedly engaged." (Emphasis mine.) And see Klitch v. Betts,89 N.J.L. 348, 98 A. 427; Davis v. Houghtelin, 33 Neb. 582,50 N.W. 765, 14 L.R.A. 737; Kastrup v. Yellow Cab Baggage Co.,129 Kan. 398, 282 P. 742; Brown v. Union P. Ry. Co., 111 Kan. 338,207 P. 196; Broome v. Primrose Tapestry Mills, 59 Ga. App. 70,200 S.E. 506; Dolan v. Hubinger, 109 Iowa 408, 80 N.W. 514; Holler v. P. Sanford Ross, 68 N.J.L. 324, 53 A. 472, 59 L.R.A. 943, 96 Am. St. Rep. 546.

Measured by this rule the employer in this instance should not be held accountable in damages for the act of the agent complained of. Such agent was employed merely as a common laborer, and the act of employment in which he was engaged immediately prior to the time of the alleged assault was the repair of a dam located on the employer's property. It has not been shown, and it is difficult to perceive, in what way the purposes of the employer were being furthered by the act of the employee in leaving his employment, departing from the employer's property, and committing an assault against the plaintiff on the latter's property. If plaintiff's testimony is to be believed, as it apparently was by the jury, he was in no way interfering with the work of the employee. It is my view that the alleged assault, under such circumstances, cannot be construed as being in furtherance of the employer's business, or within the scope of the employment. Rather, the plaintiff's testimony discloses, if he told the truth, that the employee was at the time of the assault, engaged in a mission or an errand of his own, which was in no way connected with his employment.

Under such circumstances, the rule stated in 39 C.J. 1307, and numerous cases listed under note 15, is applicable: "If the assault was committed by the servant, not as a means or for the purpose of performing the work he was employed to do, but in a spirit of vindictiveness or to gratify personal animosity, or to carry out an independent purpose of his own, then the master is not liable." A case almost precisely in point is Ward v. Erie Ry. Co., 89 N.J.L. 525, 100 A. 1029.

I appreciate the almost hopeless conflict in the cases involving application of the doctrine of respondeat superior, but I think that in view of the factual situation presented here, the majority opinion enlarges the scope of that doctrine to a dangerous and unwarranted degree.

Rehearing denied May 23, 1947.