CARR v. CROWELL (1946)

District Court of Appeal, Second District, Division 2, California.

CARR v. CROWELL.

Civ. 15157.

Decided: February 28, 1946

Lashrer B. Gallagher, of Los Angeles, for appellant. Kenneth J. Murphy, of Los Angeles, for respondent.

From a judgment in favor of defendant predicated upon the granting of his motion for a directed verdict in an action to recover damages for injuries resulting from an assault, plaintiff appeals.

The essential facts are these:

Defendant, a general contractor, employed Mr. Enloe as a lay-out man, it being his duty to lay out plates and mark where pieces of timber went onto the plates. This work followed the laying of the hardwood floors. The hardwood floors generally had to be oiled to protect them from the weather. On February 2, 1944, plaintiff whose duty it was to lay flooring and then oil it was working on the building while Mr. Enloe was laying plates. Plaintiff saw Mr. Enloe putting a plate down and went over to him saying, ‘Take it easy, they [referring to the hardwood floor men] are not through yet.’ Mr. Enloe replied, ‘I am taking it easy.’ Plaintiff then picked up the plate which Mr. Enloe had placed and threw it off onto the roof of a porch. Mr. Enloe remarked, ‘You think you have done something smart.’ Plaintiff turned and walked away and went to work between two stairways. Later plaintiff noticed that Mr. Enloe was putting the plate back again in the same place. He thereupon took one step, reached the plate and kicked it off with his foot, at which time Mr. Enloe threw a hammer which hit plaintiff in the head seriously injuring him. Whereupon Mr. Enloe quit work and walked off the job.

This is the sole question necessary for our determination:

Was Mr. Enloe engaged in the scope of his employment when he threw the hammer at plaintiff?

This question must b answered in the negative. Mr. Enloe was not hired to throw hammers. His sole and only duty was to get two by fours (plates) and lay them out after the hardwood men had laid and oiled the floor. Mr. Enloe's act in throwing the hammer in no sense furthered the purpose of his employment. It could not in any manner expedite or facilitate the work which was done or which was to be done. After the plate had been kicked off by plaintiff there was only one thing which could be done by Mr. Enloe to carry out the object of his employment and that was to replace the plate. Since Mr. Enloe's act in throwing the hammer had no tendency to promote or further the interests of his employer, the act was outside and beyond the scope of his employment.

As the law is settled that an employer is not liable for an assault committed by an employee when the act is without the scope of the employee's employment (Yates v. Taft Lodge, 6 Cal.App.2d 389, 390, 44 P.2d 409), the trial court properly directed a verdict in favor of defendant in the instant case.

The following cases relied on by plaintiff are all factually distinguishable from the present case: Haworth v. Elliott, 67 Cal.App.2d 77, 153 P.2d 804; Andrews v. Seidner, 49 Cal.App.2d 427, 121 P.2d 863; Johnson v. Monson, 183 Cal. 149, 190 P. 635; Deevy v. Tassi, 21 Cal.2d 109, 130 P.2d 389; Hiroshima v. Pacific Gas & Elec. Co., 18 Cal.App.2d 24, 63 P.2d 340. In each of these cases the injury inflicted by the employee was committed in the scope of the employee's employment and while he was furthering his employer's business.

Judgment affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.