Piett v. Pittsburg Contracting Co. — 156 N.Y.S. 365

Majority

p. 365

PIETT v. PITTSBURG CONTRACTING CO. et al.

(Supreme Court, Appellate Division, First Department.

December 24, 1915.)

Headnote

Master and Servant <@=3302—Liability for Servant’s Torts.

Defendant was not liable for an assault committed on plaintiff by a person who was not acting in the course of Ms employment or within the scope of his authority in assaulting plaintiff.

[Ed. Note.'—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <g=»302.]

Appeal from Trial Term, New York County.

Action by Ralph Piett against the Pittsburg Contracting Company and others. From a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, defendants appeal. Reversed, and complaint dismissed.

Argued before INGRAHAM, P. J., and McLAUGHRIN, CLARICE, SCOTT, and SMITH, JJ.

John Ambrose Goodwin, of White Plains, for appellants.

Lawrence B. Cohen, of New York City, for respondent.

The evidence clearly shows that the defendant Mitchell was not acting in the course of his employment, or within the scope of his authority, in assaulting the plaintiff. There is nothing in the testimony that would make the defendant corporation liable for the assaults of Mitchell, and for that reason the finding that Mitchell was acting within the scope of his authority, and that the defendant appellant was liable for Mitchell’s assaults, is reversed, the judgment reversed, with costs, and the complaint dismissed, with costs.