Barney v. Jewel Tea Co., Inc.

The core of the opinion lies in the paragraph reading

"We believe the better rule to be that a principal is not liable for the willful tort of an agent which is committed during the course of his employment unless it is committed in the furtherance ofhis employer's interests or unless the employment is such that the use of force could be contemplated in its accomplishment." (Italics added.)

I could better subscribe outrightly to this pronouncement without comment if it were not for the fact that the italicized phrases themselves require definition.

In my dissenting opinion in the case of Stover Bedding Co. v. Industrial Comm., 99 Utah 423, 107 P.2d 1027, 134 A.L.R. 1006, I called attention to the difficulties encountered by the early courts in fastening upon a sound basis for the application of the doctrine of "let the principal respond" (respondeat superior) when he was not at fault.

Those cases involved negligence rather than willful tort. A willful act in the sense that the act is not only intended but harm is intended to be inflicted by the intended act usually falls in the class of crimes. A battery is a crime. The early judges used all sorts of phrases such as "in the scope of the employment," "in the cause of the employment," "in furtherance of the master's interests or business," "for the benefit of the master," "acting for the master." These various phrases reflected several basic concepts: First, that when the master acts through another it is as if he himself was acting. This concept had the disadvantage of still leaving open the question of when under the facts was the master acting through another. This led to the second concept as the basis for the principle that even though the servant may have been acting without instructions, in fact in some cases contrary to instructions, if he had not disconnected himself from the employment but was still in its course or as some judges put it in its scope the innocent victim should not be required to assume the full consequences of the negligence but the master should at least be required to make restitution insofar as money damages would accomplish that end. The reason given for this anomaly in the law of requiring one not at fault to pay for an injury, was explained on the basis of the third concept: That the act of the servant was in the interest of the master or for his benefit or in the advancement of his business and for that reason he should respond. Since in many cases, the action of the servant at least the manner in which it was done, was distinctly not in the interest of the master or for the advancement of the business, this finally led to the concept that the basis of the master's liability lay in the fact that he was the actuating or moving cause of the injury because he had set the servant in motion. But here it was recognized that such concept given full range would make the master liable for acts of the servant even in some cases when he had departed from the employment because but for the employment the servant would not have been in position to commit the negligent act. It was at this point that the old tort concepts of "natural, probable and proximate cause" "reasonably to be apprehended" and "independent intervening cause" came to the rescue. The law has refused to accept the "but for" doctrine so ably expounded by Judge Andrews in Palsgraf v. Long IslandR. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253. It has accepted the view of Chief Judge Cardozo in the same case to the effect that the consequences of the act must be within the "range of apprehension." See Barrus v. Western Union Telegraph Co.,90 Utah 391, 62 P.2d 113. The net historical result is that where the master's act sends the servant on his way and the servant while on that way does an act which negligently injures another the master must respond if it was reasonably to be apprehended that the servant might so act. It should be noted that in this case it is the act of the servant and not the consequences of his act which must be within the range of apprehensibility before they can be the act of the master. Once being the act of the master the usual tort rule that the consequences must be within the range of apprehensibility also applies. Barrus v. WesternUnion Telegraph Company, supra.

Applying these principles to the above case the question arises: Could the Jewel Tea Company when it sent Davis on his course as collector reasonably apprehend that he would in the act of attempting to collect money due it, use force? In those cases where seizure of property or eviction of persons is contemplated, the use of force may be expected and reasonably apprehended; but not so in the business of soliciting orders or collecting bills.

But by inference says the quotation taken from the main opinion: A master is liable in cases where the agent commits awillful tort while in the course of his employment if it is done in the furtherance of his master's interests. How does this fit in with the concepts above enunciated? Certainly if the agent has departed from the employment or from its course or scope such act breaks the chain of causation between the act of the master, in sending him on his way, and the tort. Such departure is equivalent to an independent intervening cause. Such was the case in Rohrmoser v. Household Finance Corporation,231 Mo. App. 1188, 86 S.W.2d 103, where the collector departed on his own course in attempting to become unduly familiar with the plaintiff. Such, too, would be the case where the assault grows out of an altercation which had its genesis in purely personal differences — thus where a quarrel ensues because either the collector or the customer may use the occasion of the collector's visit to warn the other against permitting his child to trespass or against becoming unduly familiar with a member of his family or other personal grievance. Where during employment or while engaged in a transaction called for by the employment a quarrel ensues over a purely personal matter the employment would be only the occasion for it. It would not be within the scope or the course of the employment. The difficult case is that in which angry words which lead to an assault arise because of the attempt to sell or collect. Certainly the assault can then be said to grow out or stem from the employment. And in a compensation case it would be considered as arising out of the employment if not in the course of it. Where the act done in line of duty and the assault which arose out of it are part of one closely integrated transaction, I am not sure that it can be said that there was a departure from the course or scope of the employment. Otherwise, I would see no purpose in introducing the element that the willful tort must be in furtherance of the master's interests. The departure itself would break the chain of causation.

In the instant case the battery committed by Davis was not so closely integrated with the act of attempting to collect as seems to have been the situation in the cases of Matsuda v.Hammond, 77 Wn., 120, 137 P. 328, 51 L.R.A., N.S., 920, orAnderson v. Metropolitan Life Insurance Co., 128 Misc. 144,218 N.Y.S. 494; Kastrup v. Yellow Cab Company, 129 Kan. 398,282 P. 742. In the instant case force was not directed or designed to accomplish a particular act for the employer but rather to vent his feelings after he had been told by Mrs. Barney that she would have no more to do with him or the Jewel Tea Company if he represented it and after she ordered him off the premises. Assuming, however, that Davis had not by the assault put himself out of the scope or course of his employment how stands the case in reference to the second necessary element laid down by the decision, to wit that the force must be used in furtherance of the master's interests or business? Must the furtherance of the master's interests encompass an actual benefit to the master or is it in furtherance of his interest if at the time it was done it seemed reasonably calculated to advance them. The phrase "in furtherance of the employer's interest" may have a slightly narrower signification than the phrase "in furtherance of the employer's business." Be that as it may it cannot be said that force which is likely to bring on a lawsuit and result in a judgment for damages against the master is in furtherance of his interests or his business. The distinction then comes in the use of force which at the time it was applied was for the purpose of accomplishing an act in line of the servant's duty and the use of force which is produced by anger without thought or purpose of furthering any interest other than to vent that anger on the person whose "fighting words" produced it. The case of Crelly v. Missouri Kan. Telephone Co.,84 Kan. 19, 113 P. 386, 33 L.R.A., N.S., 328, cited by appellant may be one where force was used on the employee not as a mere product of the heat of passion but to compel her to sign the voucher. I am not sure that under the principle laid down in the main opinion that case would not go the other way. But under the evidence in this case it is clear that the force used by Davis was not designed to produce payment or for the "accomplishment of objects within the line of his duties, or in and about the business or duties as signed to him by his employer" which trenchant quoted phrase was borrowed by this court from the case of Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 728, 10 L.R.A., N.S., 653, and used in our decision in the case ofKeller v. Gunn Supply Co., 62 Utah 501, 220 P. 1063.

If, then, we accept the thesis which seems the best justification for the doctrine of respondeat superior i.e. master as cause for the injury in that he started the servant on his course, in cases of willful tort or the willful invasion of plaintiff's person by force, the master cannot be held to be the cause where there is a departure from the employment or, if no departure, the agent is not acting for what he conceives to be for the master's interests but for the purpose of venting his spleen on the plaintiff even though the spleen arose from transactions which were in the course of the employment. Whether we think of force used for personal purposes as not being within the realm of apprehensibility or because it itself breaks the chain of causation leading back to the master makes no difference. The result is the same. Under the facts of this case Davis in his use of force was not acting to advance the interests of his master nor to accomplish objects within the line of his duties and the action of the appellant in sending him on his course was not in any sense a legal cause of the assault. I, therefore, concur.