Wise v. Peugh

^* Headnotes 1. Appeal and Error, 4 C.J., Section 2709; 2. Agency, 2 C.J., Section 534; Liability of principal for assault by agent in collecting debts, see note in 51 L.R.A. (N.S.) 920; Liability of principal for assault by agent, see 24 A.L.R. 545; 21 R.C.L. 906; 5 R.C.L. Supp., p. 1178; 3. Agency, 2 C.J., Section 731. Appellant, W.L. Wise, sued the appellee, W.G. Peugh, for damages for an assault made upon appellant by one Bill Wamble, who, it is alleged, was acting as agent of appellee at the time of the assault and battery. The court granted a peremptory instruction for the defendant; hence this appeal.

The case in substance is as follows:

Appellee, Peugh, was engaged in selling trucks and automobiles, and Bill Wamble was his sales agent in the business. The record shows that Wamble obtained a pair of mules for Peugh upon some kind of an automobile trade, and Wamble sold the mules to appellant, Wise, upon certain terms, and took appellant's note for the purchase money of the mules, payable to appellee, Peugh. In this transaction, Bill Wamble was acting for and as agent for Peugh. Subsequently appellant became dissatisfied with the mules, and claimed that they were unsound, and wanted to return them to Peugh and Wamble, and get his note back. It appears that appellant and Wamble and another man were to meet one day at the garage of appellee, Peugh, in Aberdeen, for the purpose of adjusting the matter.

On the day the parties were to meet at the garage of appellee for the purpose of adjusting the matter regarding the mules, appellant, Wise, came to town, and as he was passing near the garage of appellee, Peugh, Bill Wamble called him into the garage, and there the three of them, Wamble, Peugh, and appellant, began to discuss the matter of adjusting the difference between them as to the mules, and whether or not the mules were unsound and would be taken back by Peugh and Wamble, or whether Wise would lose ten dollars or twenty-five dollars in the transaction by delivering the mules back. The three of them discussed these questions at some length, and while thus discussing the matter Wamble seems to have lost his temper and assaulted and beat appellant, Wise, breaking some of his ribs, and otherwise injuring him. Wise did nothing to justify the assault, according to the testimony of Wise, who was the only witness so far to testify in the case.

We assume that the lower court directed a verdict for the defendant upon the ground that appellee, Peugh, was not liable for the act of Wamble when he assaulted the appellant, Wise. When a peremptory instruction is granted against a plaintiff, the plaintiff's testimony must be given full weight with reference to the facts and circumstances and the reasonable inferences to be drawn therefrom; and if the jury in this case could have reasonably inferred from all of the facts and circumstances that Wamble was acting as the agent of Peugh, and in furtherance of his business, when he assaulted Wise, then Peugh, the principal, would be liable for the act of Wamble.

We have carefully read the testimony of the appellant, Wise, and, without taking the time and space to set it out and discuss it in detail, we think it was sufficient to take the question of fact to the jury as to whether or not, from all the facts and circumstances and the reasonable inferences to be drawn therefrom, Bill Wamble was acting as agent of the appellee, Peugh, at the time he assaulted the appellant, Wise; that the testimony reasonably supports the inference that Wamble was acting within the scope of his authority and in furtherance of the principal's business when he assaulted appellant, Wise, while discussing the adjustment of the mule transaction for Peugh, which Wamble had promoted and negotiated as the agent of Peugh a short while previous to the time of the assault complained of in this case.

Wamble had sold the mules to Wise for Peugh, and took the note for the purchase money, and after Wise complained of the unsoundness of the mules, which had been guaranteed sound, Wamble and Wise met at the garage of Peugh to adjust the whole matter, which Wamble had been handling for Peugh; that is, the sale of the mules and the collection of the amount due for them, or the return of the mules; and while thus engaged about a matter which, it may be inferred, he was authorized to act in by Peugh, Wamble suddenly, without legal justification, so far as this record now discloses, brutally assaulted and bruised appellant. The jury could reasonably conclude from the facts and circumstances that Wamble was the agent of Peugh, and was acting in furtherance of Peugh's interest, at the time he assaulted the appellant.

In view of these conclusions, we think the court was in error in directing a verdict for the defendant, and therefore the judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.