New York County NyArchives Court.....Meehan, Michael Vs. William Morewood 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

MICHAEL MEEHAN, Appellant, v. WILLIAM B. MOREWOOD and Others, Respondents.

Assault — what acts, of a foreman in a warehouse, are within the scope of his 
employment.

In an action for an assault upon the person of the plaintiff by an employee of 
the defendants' firm, it appeared that the plaintiff went with a truck, by the 
defendants' direction, to obtain some chests of tea at the defendants' 
storehouse, where they found the defendants' foreman, and the delivery upon the 
truck was begun. The attention of the defendants' foreman was, during the 
delivery,  called to the fact that one of the chests of tea was in bad order, by 
the plaintiff, who told the foreman he could not take the chest in question. The 
foreman insisted that he should, and the plaintiff refusing to do so the 
defendants' foreman exclaimed: "Here, you damn scoundrel, clear out," and kicked 
and shoved him down into the street. The plaintiff, as he was passing out, 
grasped the door, which the defendants' foreman shut upon one of the plaintiffs 
fingers, causing a wound which rendered the amputation of the finger necessary.

Held, that the acts of the defendants' foreman were not within the scope of his 
employment and that the defendants were not responsible therefor.

Hoffman v. The New York Central and Hudson River Railroad Company (14 J .& S., 
526, 529) distinguished.

Appeal by the plaintiff from a judgment in favor of the defendants, entered upon 
a dismissal of the complaint at the New York Circuit, at the close of the 
plaintiff's case, which judgment was entered in the office of the clerk of the 
county of New York on the 28th day of October, 1887.

James M. Lyddy, for the appellant.

George A. Strong, for the respondents.

Bartlett, J.:

In this action the plaintiff seeks to hold the defendants liable for an assault 
which was committed upon the plaintiff by a person in the employ of the 
defendants' firm. The defendants and William Donaldson, now deceased, carried on 
business as warehousemen in the city of New York. The plaintiff was a truckman 
engaged in the cartage business, and employing a number of men under him. In 
April, 1885, he was directed by Mr. A. Driggs to go to the storehouse of the 
defendants' firm, for the purpose of taking some tea out of it, to be carried 
over to Mr. Driggs' store. He went to the office of the defendant, where "a 
gentleman took the order and said his foreman would deliver the tea on the Water 
street side of the house." The plaintiff, therefore, proceeded to the Water 
street side with a truck driven by one of his employees, and accompanied by 
another man to load. Here they found the foreman, one Neil Mahony by name, and 
the delivery of the tea was begun. As it was being placed upon the truck the 
plaintiff's loader objected to one of the chests, and said he would not take it 
because it was in bad order. The plaintiff called the attention of Mahony to the 
fact, and told the foreman that he could not take the tea to which objection was 
made, because it was in bad condition, and to take it would be against the 
orders of his boss. Mahony insisted that he should take the tea. The plaintiff 
said he wished he could, but he would have to pay for the damage if he did. 
Thereupon Mahony exclaimed, "Here, you damned scoundrel, clear out of here;" 
and, seizing the plaintiff by the collar, he kicked him and shoved him out into 
the street. The plaintiff grasped the door as he was passing out, and Mahoney 
shut it upon one of the plaintiff's fingers, causing a wound which rendered the 
amputation of the finger necessary.

Upon these facts the question arises whether the foreman, Mahony, was acting in 
his master's business and within the scope of his employment as a servant of the 
defendants' firm at the time he committed this apparently unprovoked and 
outrageous assault. If he was, the defendants must be deemed responsible, 
although the conduct of the servant amounted to a willful and wanton wrong on 
his part. (Mott v. Consumers' Ice Co., 73 N. Y., 543; Quinn v. Power, 87 id., 
535.) In this class of cases "the inquiry is, whether the wrongful act is in the 
course of the employment or outside of it, and to accomplish a purpose foreign 
to it." (Ochsenbein v. Shapley, 85 N. Y., 214, 220.)

The appellant refers to the separate defense, set up in the seventh subdivision 
of the answer, as an admission that Mahony was acting in the course of his 
employment on the occasion of the attack which, he made upon the plaintiff. In 
this portion of the answer it is averred that if the plaintiff sustained the 
injuries of which he complains, they were caused by his own misconduct while 
forcibly trespassing upon the premises mentioned in the complaint, and while 
committing, or attempting to commit, an assault and battery "upon a porter or 
workman employed and performing his duties as such on said premises." There is 
nothing in the testimony, however, or anywhere in the record, to identify the 
porter or workman thus mentioned with Mahony. On the contrary, Mahony's 
functions appear to have been distinctly different from those of a workman or 
porter, and higher, for according to the plaintiff's own testimony he was the 
person indicated as being the foreman by the gentleman in the office of the 
defendant firm who took the order for the tea. The seventh subdivision of the 
answer, therefore, cannot be construed into an admission that Mahony was acting 
in the scope of his employment at the time he assaulted the plaintiff. The duty 
to which Mahony appears to have been assigned by his employers was the 
superintendence of the delivery of the tea to the plaintiff. Evidently he was 
expected to do nothing more than to see that the plaintiff should be allowed to 
take away certain specified chests of tea. If the plaintiff had attempted to 
carry off other goods, the foreman, doubtless, would have been expected to 
interfere and protect the property of the firm. But his employment did not 
contemplate the exercise of any compulsion upon the plaintiff to force him to 
accept any particular teas, or any teas whatsoever, against his wish or protest. 
Indeed, a direction to deliver property to a person who has come for it 
generally involves, the assumption that the person who has come is desirous of 
receiving the property. If the foreman, in making the asaault, was actuated by 
any other feeling than one of mere anger, because the plaintiff had expressed an 
unwillingness to accept some of the tea, his purpose must have been to force the 
tea upon the plaintiff in spite of his objection; but there is no reason to 
suppose that the defendants themselves would have insisted, or wanted anyone to 
insist in their behalf, that he should take the tea in question notwithstanding 
his refusal to do so. The object sought to be accomplished by the foreman in 
making the assault thus appears to have been wholly disconnected from his 
employment. It was not done in the prosecution of the business which the master 
employed the servant to do, and the question whether the act complained of was 
so done is the true test of responsibility in such a case as this. (Cosgrove v. 
Ogden, 49 N. Y., 255.) The trial judge, therefore, was right in holding that no 
case had been made out against the defendants' firm, and the complaint was 
properly dismissed. What was said by the Superior Court in Hoffman v. New York 
Central, etc., Railroad Company (14 J. & S., 526, 529), to the effect that it is 
always a question for the jury, whether the act of a servant was done in 
pursuance of his employment or wickedly and maliciously, was expressly limited 
to cases in which the wrongful act is not entirely inconsistent with the nature 
of the servant's employment. Here, however, it, seems to have been so.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Macomber, J., concurred.

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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