Summary
In Tshudy v. Hubbs Stores Corp., 310 Pa. 285, 165 A. 238, we decided that where the manager of a store raises a knife which he had been using in the course of his work as if to throw it at a customer and the knife slips out of his hand, unintentionally injuring the customer, the action of the employee was his own, not within the scope of his employment and not incident to the authority granted and the employer was not liable to the person injured.
Summary of this case from Herr v. Simplex Paper Box Corp.Opinion
January 9, 1933.
February 1, 1933.
Negligence — Master and servant — Scope of employment — Raising knife as if to throw it at customer in store — Nonsuit.
1. Where an act of violence by which injury is occasioned is not done in execution of, or as incident to, the authority given a servant, whether the action is simply careless, or whether it is malicious, it is the act of the servant, and the master is not answerable. [286]
2. Where the manager of a store raises a knife, which he had been using in the course of his work, as if to throw it at a customer of the store, and the knife slips out of his hand, unintentionally injuring the customer, the action of the employee is his own and a nonsuit is properly entered in a suit against the employer. [285-6]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 24, Jan. T., 1933, by plaintiff, from order of C. P. Chester Co., Jan. T., 1931, No. 42, overruling motion to strike off nonsuit, in case of Clement Tshudy v. Hubbs Stores Corporation. Affirmed.
Trespass for personal injuries. Before WINDLE, J.
The opinion of the Supreme Court states the facts. Nonsuit. Refusal to strike it off. Plaintiff appealed.
Error assigned, inter alia, was refusal to strike off nonsuit, quoting record.
Truman D. Wade, with him Robert C. Walden, for appellant.
Ward C. Henry, for appellee, was not heard.
Argued January 9, 1933.
Plaintiff appeals from the refusal of the court below to lift a compulsory nonsuit granted in an action of trespass of which the facts were as follows: Plaintiff entered defendant's store to make a purchase, and signified his intention of doing so by touching the manager on the back. The latter was in a stooping position with his back toward plaintiff, and engaged at the time in trimming lettuce with a knife. Before serving the customer, for some unexplained reason the manager half turned and raised the instrument as if to throw it at plaintiff. The knife slipped or flew out of his hand, striking plaintiff on the knee, inflicting a small wound which subsequently became infected, causing serious injury to the knee joint. There was no evidence of ill-feeling existing between plaintiff and defendant's manager; on the contrary, they were well acquainted with each other and "perfectly friendly." We find nothing in the record to indicate the knife was thrown intentionally.
It is obvious the lower court was right in entering a nonsuit on these facts. The act of defendant's employee in raising a knife as though to throw it at the prospective customer was clearly not within the scope of his employment and no recovery can be predicated upon the results flowing from this negligent act. There is nothing in the evidence to support appellant's theory that the manager of the store was merely preparing to put the knife aside in order to be free to attend to the customer's wishes. Plaintiff testified that defendant's employee "made a motion to throw the knife at me" and no facts were introduced which would lend weight to the theory advanced now.
This case is ruled by Guille v. Campbell, 200 Pa. 119, and we may appropriately repeat what was there said at page 122: "The act of violence by which the injury was occasioned was not done in execution of the authority given, but was quite beyond it, and must be regarded as the unauthorized act of the servant, for which he himself, and not the defendants, must be answerable. Whether this action was simply careless, or whether it was malicious, it was his own, and was not incident to the authority granted."
The judgment is affirmed.