Gerstein v. C. F. Adams Co.

Kerwin, J. The evidence in this case tends to show that the employees of the defendant, at the time of the alleged injury, were attempting to collect the balance due on a clock sold and delivered by defendant to plaintiff; that said employees forcibly took the clock from the home of plaintiff and in so doing committed an assault and battery upon her, kicking and severely injuring her; that they forcibly took possession of the clock after plaintiff had failed to pay the balance due. Said employees denied that they assaulted or beat plaintiff or used any force in taking the clock. Plaintiff testified that at the time in question she was alone and that the employees of the defendant came to her home and demanded all the money due on the clock; she said she owed $3 and would pay fifty cents and the balance later, but one of the employees, said, “No, I have to have all the money.” Then they entered the room where the clock was and immediately took it, and she tried to stop them and they tore her waist and one of them gave her a punch in the abdomen and she fell. They ran away, taking the clock with them, and she lay on the floor half an hour and could not get up; that she bought the clock on the instalment plan. The evidence is practically undisputed that the clock was taken by the employees of the defendant while engaged in the course of their employment, hence their employer, the [506] defendant here, was liable for the negligent or wrongful act of its servants committed while endeavoring to perform a duty delegated to them by the master, notwithstanding the method adopted by the servants may not have been authorized, and even may have been prohibited, by the master. Cobb v. Simon, 119 Wis. 597, 97 N. W. 276; Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424; Daley v. C. & N. W. R. Co. 145 Wis. 249, 129 N. W. 1062; Craker v. C. & N. W. R. Co. 36 Wis. 657. The instant case is ruled by the foregoing cases. It is insisted that the court erred in the following charge to the jury: “With these definitions in mind, you are instructed that if you are satisfied to a reasonable certainty by a preppnderance of the evidence that one of the defendant’s servants or employees committed an assault and battery upon plaintiff on November 14, 1917, then your verdict will be for the plaintiff.” It is contended that this charge was error for the reason that the court should have embraced in the charge the ques^ tion whether the assault and battery was committed while the servants were acting within the course of their employment. As before observed, the evidence is substantially un-contradicted that the employees were acting within the course of their employment at the time they took the clock, hence there was nothing in the record calling for any different in-' struction than that given by the court. Moreover, if appellant desired a more favorable instruction than that given it should have requested it, which it failed to do. We are satisfied that there was no prejudicial error in the charge’"as given, and that the judgment below must be affirmed. By the Court. — Judgment affirmed.