Andrews v. Seidner

SHINN, J.

In this action for assault and battery respondent was awarded $1,535 as damages against Seidner, owner of a cafe and beer hall, and Haimsohn, his employee. Both defendants appeal, urging the insufficiency of the evidence to support the findings.

Respondent entered the beer hall, sat on a stool in

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front of the bar and had several glasses of beer. He was asked by Haimsohn, who was known to the customers and is referred to in the record as Murphy, and who was behind the bar and in charge of the place in the absence of the owner, to pay for drinks consumed by two women who sat at the bar on stools next to respondent. An argument ensued between respondent and Haimsohn, in which the former denied ordering the drinks and insisted that if he was to be charged for them he would credit the amount, 60 cents, upon a debt for carpenter work which he had done for Seidner which he claimed was unpaid. Haimsohn declined to settle on this basis. Respondent proceeded to the end of the bar where a small gate led into the bartender’s domain. The argument continued. Thus far the evidence was without conflict. Plaintiff testified that as he stood outside the gate he was suddenly struck by either Haimsohn or one Brazelton, a customer, and was shoved through a door into the kitchen, where he was beaten by both men, receiving severe lacerations, bruises, and a broken leg. The testimony of other witnesses was that respondent entered the area behind the bar through the gate and attacked Haimsohn; that the latter retreated through the door into the kitchen, where he was followed by respondent. The court accepted the testimony of respondent, found that he was not the aggressor, that he was an invitee and not a trespasser, that Haimsohn was not acting in defense of his person, and that his claim that he used only the force necessary to expel respondent from a portion of the premises where he had no right to be was unfounded. The court also found that Haimsohn was acting at the time within the scope of his employment and upon this finding based the judgment against the employer Seidner.

The facts found with relation to the manner in which the brawl occurred find support in the evidence, and we conclude that the finding that Haimsohn was acting within the scope of his employment, which is challenged by appellant Seidner, is likewise supported. In the attack made on this finding it is argued that upon a view of the evidence most favorable to respondent this court must hold, as a matter of law, that the employee was acting solely on his own behalf and responsibility in committing the assault.