Yates v. Taft Lodge No. 1527

BARNARD, P. J. A demurrer to an amended complaint filed by the defendant Dear was overruled but a demurrer filed by the other defendants was sustained without leave to amend, and the plaintiff has appealed from a judgment then entered in favor of such other defendants.

[390]The complaint alleged that the defendant lodge rented from the plaintiff certain picnic grounds known as Fort Tejón for the purpose of giving a benefit picnic and barbecue on a certain day, to which admission was charged; that in said contract of rental the plaintiff reserved to himself concessions for the sale of refreshments; that a concession for dancing was transferred to a benevolent association subsidiary to the defendant lodge, called “The Antlers’’, and it was agreed that the said Antlers should furnish and bring into the grounds musicians for the dance; that on the date in question the defendant lodge designated and employed the defendant Dear as gatekeeper and instructed and empowered him to take charge of the entrance to the grounds and to collect the charges for admission from the general public; that Dear entered upon these duties as such gatekeeper and while so engaged certain musicians employed by the Antlers to furnish music for the dance appeared at the gate and requested admittance; that Dear refused admittance to them; that demand was made upon the plaintiff by the said Antlers that said musicians be admitted in conformance with the contract; that thereupon the plaintiff accosted Dear at the entrance gate and demanded from him admittance for the musicians; and that said Dear “refused and continued to refuse such admittance wrongfully and contrary to the terms of agreement hereinabove set out, and that the plaintiff remonstrated with him and continued to demand the admittance into said grounds of the said musicians, and that thereupon the said defendant, R. C. Dear, the agent, servant and gatekeeper of the said defendant, Taft Lodge No. 1527, Benevolent and Protective Order of Elks of the United States of America, an unincorporated association, and in the due course of his said employment, violently, maliciously and willfully assaulted and beat the plaintiff about his face and body’’.

It is well settled that a master is liable for an assault committed by his servant where the act is done within the scope of the servant’s employment and that he is not liable where the wrongful act is one which the servant was not authorized or empowered to do under the nature of his employment, but where the servant has, for some purpose of his own, departed from his master’s business. (Stephenson v. Southern Pacific Co., 93 Cal. 558 [29 Pac. 234, 27 Am. St. Rep. 223, 15 L. R. A. 475]; Rahmel v. Lehndorff,