Stansell v. Safeway Stores, Inc.

BARNARD, P. J.

This is an action for damages on account of injuries suffered by the plaintiff minor as a result of an assault made Upon her by an agent of the defendant, who was the manager of one of its branch grocery stores in San Diego. A judgment totaling $516 was rendered in favor of the plaintiffs and the defendant has appealed on the sole ground that the court’s finding to the effect that this manager at the time of the assault was acting within the scope of his

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employment is not sustained by the evidence, it being contended that the evidence clearly discloses that at the time in question he had departed from the course and scope of his employment.

The facts are undisputed. On February 9, 1939, the respondent minor, who was then 14 years of age, at the request of her mother, went to this store to obtain certain groceries upon a county relief order, which order she had been told by her mother was at that store. She collected the groceries and took them to the checking counter where she was told by another employee of the store that he was unable to find the relief order. The manager assisted in looking for the order, but was also unable to find it. Thereafter, the manager talked to the girl’s mother over the telephone and told her the order was not there. The mother insisted it was there and asked him to look again. He replied that the order was not there, that he was not going to look any more, that he was the manager of the store and that he should know what was there. He became angry during the telephone conversation and immediately thereafter, the closing hour for the store having come, he accompanied the girl to the door in order to let her out. At the door, the girl said to him “Well, are you-all trying to gyp us out of some groceries?’’ The manager replied: “No, and that damned bitch on the other end of the line is lying’’. The girl replied: “If my mother is a damned bitch you are a bastard’’. The manager immediately started for the girl and she ran. He caught her within 60 or 70 feet and struck her and kicked her, knocking her to the ground and causing the injuries here involved.

It is well settled that a master is liable for the wrongful acts of his servant committed while in his service and within the scope of his employment. Conversely, it is equally well settled that the master is not liable for acts committed by a servant who has departed from the service of his master and is engaged in carrying out an independent purpose of his own.