DuPree v. Babcock ( 1959 )

Felton, Chief Judge,

dissenting. I think the court erred in sustaining the motion for a summary judgment as to liability. Neither the plaintiff in the trial court in his affidavit nor the defendant DuPree in her answer stated as a fact that at the time the employee discharged the gun he was acting in the course of his employment. The overruling of the demurrers to the petition meant only that the allegations of the petition were to be accepted as trae on' demurrer, and not as matters of fact. The ruling on the demurrers adjudicated for one thing, that if the facts alleged were found to be true by a jury, the jury would be authorized but not required to find that Brandt was acting in the scope of his employment at the time he discharged the gun. The ruling of the majority in this case will forever take away from a jury the right and power to decide anything but that a defendant is liable where demurrers to a petition have been overruled and the question to be decided is whether the act of an employee during the period of employment is performed in the course of the employment and on the business of the employer. The Schwartz and Cohn cases cited in the majority opinion mean only that the petitions therein set forth causes of action. They did not purport to hold that the defendant was liable as a matter of law under the facts alleged. The allegations in the Andrews case, cited by the majority, clearly distinguish it from those in this case, as in that case the horseplay was alleged to be a part of the employment with the employer’s knowledge and consent.