Western Union Telegraph v. Hill

United States Court of Appeals for the Fifth Circuit · Torts

TortsAssaultVicarious LiabilityScope of Employmentassaultmere wordstechnical assaultrespondeat superior

Facts

Plaintiff worked in her husband's store, which had an electric clock maintained by defendant. She went to defendant's office to ask the manager, Sapp, to have the clock repaired, and testified that he appeared somewhat intoxicated and told her to come behind the counter and let him love and pet her, while reaching toward her. She testified his hands came within an inch or two of her and would have touched her if she had not jumped back. The trial court allowed the jury to find for plaintiff on the theory that Sapp conditioned repair of the clock on plaintiff's submission to his proposal.

Issue

Was Western Union liable for the office manager's alleged assault on plaintiff under respondeat superior? More specifically, did the alleged assault occur within the scope of Sapp's employment because it was connected to his duties regarding plaintiff's request to repair the clock?

Rule

Mere words, however provoking or insulting, do not constitute an assault. An employer is liable for an assault by its servant if the servant commits it while pursuing the master's business, even if done in a wrongful or forbidden way; but if the assault does not spring from and has no connection with the servant's duties, the employer is not liable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a package-shipping counter in Birmingham, Dana Ortiz asks clerk Leon Pike to locate a parcel that was supposed to be sent that morning. During the argument over the shipping records, Leon leans across the counter and shoves Dana's shoulder to force her away from the terminal.

If Dana sues Leon's employer for assault, which is the strongest argument that the employer may be liable?

Explanation. The majority rule is that an employer is liable for a servant's assault if the servant commits it while pursuing the master's business, even in a wrongful or forbidden way. Here, the shove arose out of Leon's handling of a customer shipment inquiry, a task within his duties, so the assault may be connected with his employment. The other choices incorrectly treat work hours, workplace instrumentalities, or express authorization as decisive. (Derived from Western Union Telegraph v. Hill (n.d.).)