Jameson v. Gavett

JENNINGS, Acting P. J.

The plaintiff herein, a boy 12 years of age, brought this action through his guardian

ad litem

against the defendants to recover damages for personal injuries sustained by him as the result of an assault and battery committed upon him by the defendant, Jack Gavett. Liability was sought to be imposed upon the defendants other than Gavett because of the alleged relationship of master and servant which existed between said defendants and Gavett and because it was alleged that the act which resulted in plaintiff’s injuries was committed by Gavett in the course and within the scope of his employment. Plaintiff’s complaint contained two causes of action. In the first cause of action it was alleged that the assault was maliciously committed by Gavett and in the second it was alleged that the act was

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negligently done. Gavett defaulted in appearance and there is no claim that the judgment rendered against him is not proper. Trial of the action against the other defendants was had before the court without a jury and resulted in the entry of a judgment against said defendants in the amount of $2,275. From this judgment the present appeal has been perfected.

The two contentions advanced on this appeal are, first, that the evidence produced during the trial of the action was insufficient to warrant the trial court in finding as it did that the defendant Gavett was an employee of appellants at the time the act was committed and second, that, if it be conceded that the fact of employment was sufficiently established, the evidence was nevertheless insufficient to support the court’s finding that the act shown to have been committed by Gavett was done by him in the course of his employment.

With respect to the first of the above-mentioned contentions, an examination of the transcript on appeal produces the conviction that it may not be declared that there is an entire absence of any evidence to support the trial court’s finding that, at the time the assault was committed, Gavett was in the employment of appellants. It may be conceded that much of the evidence which was submitted during the trial indicated that Gavett, at all times material to the present controversy, occupied the status of an independent contractor rather than that of an employee of appellants and that a judgment favorable to appellants would therefore have been sustainable. Nevertheless, the record does contain some evidence which tended to show that appellants retained the right to direct the details of the work in which Gavett was engaged and the undisputed evidence showed that appellants retained the right to discharge Gavett at any time that his work was unsatisfactory to them. These facts, especially that of direction as to details, are strongly indicative of the right of control which is the essential element of the relationship of master and servant. The question of whether Gavett was a mere employee of appellants at the time of the assault or whether he then occupied the status of an independent contractor was one of mixed law and fact and the trial court having resolved the matter in respondent’s favor upon evidence that was conflicting the criticized finding may not be disturbed.