Opinion of the court by
Gillette, J.:
The first contention of the plaintiff in error is that the trial court erred in refusing and overruling motion for judgment upon the special findings of facts No. 5. 6, 7, and 8, and contends that these findings conclusively entitle him to judgment. Even if it be conceded that these isolated interrogatories contain a fair statement of the facts to which they refer, we cannot conclude therefrom that such facts as are thereby established would relieve the plaintiff in error from liability.
The general verdict carries with it a presumption that all necessary facts authorizing it have been established upon the trial of.the case. Notwithstanding this presumption, if the special questions of fact show that some controlling fact exists inconsistent with the general verdict, in such case.
the special verdict must control, and tlie proposition here submitted is whether or not the facts established by interrogatories 5, 6, 7, and 8 are sufficient to overthrow the general verdict. By these interrogatories it is established that the defendant in error had settled his bill in the restaurant, and had started to leave the same when he was accosted by the servant Frank New, and upon being so accosted he turned and faced back towards the interior of the building when the assault was made. Other answers to special interrogatories show that Frank New at the time was in the employ of the plaintiff in error and was carrying out the instructions that had been .given him by his employer who at the time knew that he was going to malee an assault upon the defendant in time to have prevented it; and the evidence shows that what was done by the servant was in the immediate presence of the employer, who at the time failed to exercise any authority over the servant to prevent a vicious assault upon a guest. Under these circumstances we think that it cannot rightfully be said that the restaurant keeper, plaintiff in error, was exempted from liability because of the fact that his guest had settled his bill and was in the act of leaving the establishment and turned around before leaving because of derogatory remarks made by the servant to the master concerning him.
We are of the opinion that he as a guest was under the protection of the master while going from as well as while entering the building, and especially where, as in this case, the act of the servant complained of was because of a fancied wrong to the master in not paying the master such a sum as the servant thought ought to have been paid.
It is, we think, a clearly settled proposition of law that the master is liable for the wilful, belligerent or even malicious acts of a servant, clone in the course of his employment and within the scope of his authority. And that the acts of the servant in this case was within the purposes for which he was employed is settled in the affirmative by the answer to special interrogatory 2, while special interrogatory 3 shows that he was carrying out the instruction which had been given him. by his employer when he hit the plaintiff.
With these facts established by the verdict of the jury we think the trial court correctly held that the motion for judgment in favor of plaintiff in error upon special findings, should be overruled. A leading -case upon this subject is found in 46 L. R. A., 314,
Nelson Business College v. Lloyd,
60 Ohio, 448.
The plaintiff in error complains of the procedure in the trial court by reason of the giving of instructions No. 3 and 5, and say: “These instructions proceed plainly upon the theory that there is a liability resting upon a restaurant keeper for torts of his servants committed upon the person of his guest, and proceed upon the presumption of such liability/' Citing
Rahmel v. Lehndorf,
76 Pac. 659.
It is true that the instructions complained of proceed upon the theory that there is a. liability on the part of one conducting a restaurant or other business dependent upon public patronage, because persons are invited into such place of business as patrons, and the jury were informed that it was the duty of one conducting such business to treat patrons with civility, and to protect them from unwarranted assaults
by the employees of the place, and in this respect we think the law was correctly stated bjr the trial court.
The instructions as a whole proceed upon the theory that to fix a liability upon a restaurant keeper because of an assault upon a patron by an employee, the employee must be acting within the scope of his employment and the assault must be found to be unjustifiable. We are not able to distinguish the liability of a restaurant keeper from that of any other master for liability for the tortious acts of his servants committed within the real or apparent scope of the duties entrusted to him, and to the extent that
Rahmel v. Lehndorf,
76. Pac. 659, is at variance with this proposition we do not agree with that case. The facts in That case however, are not shown to be analagous to the facts in the case at bar. In that ease it appeared from the only statement of facts made that “the plaintiff was a guest in the defendant’s hotel and while seated at the dinner table was assaulted and beaten by a dining room waiter.” There is nothing in that record to show how the difficulty arose or what the provocation for the assault was, or who provoked it, and the court in that case states the general law of master and servant to be that the master is not liable for the malicious torts of the servant committed outside the scope of his ' employment. The facts in this case are much broader. Evidence was introduced touching the scope of the servant’s authority and it is plain from an examination of the testimony that, the assault was made by the servant • because of a failure of the guest to pay the master what the servant thought he ought to pay in consideration of what had been furnished for him. The instructions of the court complained of were given to the jury in view of this testimony, and under the circumstances
wé
think correctly given. See
Rommell v.
Shalbacher, 120 Pa. State, 579, 6 Am. State, 732.
There is one other error presented by the brief of plaintiff in error, to wit: The refusal on the part of the court to give the second instruction asked for by him, and giving-in lieu thereof the 8th instruction, which instructions are as follows:
“Second: The jury are instructed that the said Frank New, as shown by the evidence adduced in this case, went without the scope of his employment in inflicting the said injuries upon the. plaintiff, and that therefore the defendant would not be liable to the plaintiff in damages for such injuries, unless he authorized, commanded or assented to the action of the said Frank New, in inflicting the injuries' upon the plaintiff, and that before the jury can find a verdict for the plaintiff .they must find that the defendant did authorize, command or assent to the inflictions of said injuries.”
The above requested instruction was by the court refused and in its stead the court gave its eighth instruction to the jury, which eighth instruction given by the court is as follows:
“8.
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Opinion of the court by
Gillette, J.:
The first contention of the plaintiff in error is that the trial court erred in refusing and overruling motion for judgment upon the special findings of facts No. 5. 6, 7, and 8, and contends that these findings conclusively entitle him to judgment. Even if it be conceded that these isolated interrogatories contain a fair statement of the facts to which they refer, we cannot conclude therefrom that such facts as are thereby established would relieve the plaintiff in error from liability.
The general verdict carries with it a presumption that all necessary facts authorizing it have been established upon the trial of.the case. Notwithstanding this presumption, if the special questions of fact show that some controlling fact exists inconsistent with the general verdict, in such case.
the special verdict must control, and tlie proposition here submitted is whether or not the facts established by interrogatories 5, 6, 7, and 8 are sufficient to overthrow the general verdict. By these interrogatories it is established that the defendant in error had settled his bill in the restaurant, and had started to leave the same when he was accosted by the servant Frank New, and upon being so accosted he turned and faced back towards the interior of the building when the assault was made. Other answers to special interrogatories show that Frank New at the time was in the employ of the plaintiff in error and was carrying out the instructions that had been .given him by his employer who at the time knew that he was going to malee an assault upon the defendant in time to have prevented it; and the evidence shows that what was done by the servant was in the immediate presence of the employer, who at the time failed to exercise any authority over the servant to prevent a vicious assault upon a guest. Under these circumstances we think that it cannot rightfully be said that the restaurant keeper, plaintiff in error, was exempted from liability because of the fact that his guest had settled his bill and was in the act of leaving the establishment and turned around before leaving because of derogatory remarks made by the servant to the master concerning him.
We are of the opinion that he as a guest was under the protection of the master while going from as well as while entering the building, and especially where, as in this case, the act of the servant complained of was because of a fancied wrong to the master in not paying the master such a sum as the servant thought ought to have been paid.
It is, we think, a clearly settled proposition of law that the master is liable for the wilful, belligerent or even malicious acts of a servant, clone in the course of his employment and within the scope of his authority. And that the acts of the servant in this case was within the purposes for which he was employed is settled in the affirmative by the answer to special interrogatory 2, while special interrogatory 3 shows that he was carrying out the instruction which had been given him. by his employer when he hit the plaintiff.
With these facts established by the verdict of the jury we think the trial court correctly held that the motion for judgment in favor of plaintiff in error upon special findings, should be overruled. A leading -case upon this subject is found in 46 L. R. A., 314,
Nelson Business College v. Lloyd,
60 Ohio, 448.
The plaintiff in error complains of the procedure in the trial court by reason of the giving of instructions No. 3 and 5, and say: “These instructions proceed plainly upon the theory that there is a liability resting upon a restaurant keeper for torts of his servants committed upon the person of his guest, and proceed upon the presumption of such liability/' Citing
Rahmel v. Lehndorf,
76 Pac. 659.
It is true that the instructions complained of proceed upon the theory that there is a. liability on the part of one conducting a restaurant or other business dependent upon public patronage, because persons are invited into such place of business as patrons, and the jury were informed that it was the duty of one conducting such business to treat patrons with civility, and to protect them from unwarranted assaults
by the employees of the place, and in this respect we think the law was correctly stated bjr the trial court.
The instructions as a whole proceed upon the theory that to fix a liability upon a restaurant keeper because of an assault upon a patron by an employee, the employee must be acting within the scope of his employment and the assault must be found to be unjustifiable. We are not able to distinguish the liability of a restaurant keeper from that of any other master for liability for the tortious acts of his servants committed within the real or apparent scope of the duties entrusted to him, and to the extent that
Rahmel v. Lehndorf,
76. Pac. 659, is at variance with this proposition we do not agree with that case. The facts in That case however, are not shown to be analagous to the facts in the case at bar. In that ease it appeared from the only statement of facts made that “the plaintiff was a guest in the defendant’s hotel and while seated at the dinner table was assaulted and beaten by a dining room waiter.” There is nothing in that record to show how the difficulty arose or what the provocation for the assault was, or who provoked it, and the court in that case states the general law of master and servant to be that the master is not liable for the malicious torts of the servant committed outside the scope of his ' employment. The facts in this case are much broader. Evidence was introduced touching the scope of the servant’s authority and it is plain from an examination of the testimony that, the assault was made by the servant • because of a failure of the guest to pay the master what the servant thought he ought to pay in consideration of what had been furnished for him. The instructions of the court complained of were given to the jury in view of this testimony, and under the circumstances
wé
think correctly given. See
Rommell v.
Shalbacher, 120 Pa. State, 579, 6 Am. State, 732.
There is one other error presented by the brief of plaintiff in error, to wit: The refusal on the part of the court to give the second instruction asked for by him, and giving-in lieu thereof the 8th instruction, which instructions are as follows:
“Second: The jury are instructed that the said Frank New, as shown by the evidence adduced in this case, went without the scope of his employment in inflicting the said injuries upon the. plaintiff, and that therefore the defendant would not be liable to the plaintiff in damages for such injuries, unless he authorized, commanded or assented to the action of the said Frank New, in inflicting the injuries' upon the plaintiff, and that before the jury can find a verdict for the plaintiff .they must find that the defendant did authorize, command or assent to the inflictions of said injuries.”
The above requested instruction was by the court refused and in its stead the court gave its eighth instruction to the jury, which eighth instruction given by the court is as follows:
“8. You are instructed that the employment of one as an ordinary waiter of tables in a restaurant does not confer upon such waiter the implied authority to eject persons from such restaurant, where the owner and proprietor is present and personally managing and controlling- such business, and if the assault in this ease was made by New without the knowledge and consent of the defendant, and after the relation of landlord and .guest had terminated, and after the plaintiff had had ample time to leave the restaurant, then the plaintiff cannot recover, unless you further find from the evidence that he had the express authority from the defendant to eject persons, or that the defendant could by the ex
orcise of reasonable diligence have prevented the assault and negligently failed to do so.”
In the instruction requested by plaintiff in error the court is required to say that as a matter of law from the facts adduced upon the trial the waiter was not acting within the scope of his employment. Such instruction was properly refused. By giving it the court would have invaded the province of the jury in their determination that the waiter (New) in doing what he did, was acting within the scope of his authority air cl employment.
If the court had arrived at such a conclusion from the testimony there was no question left to be determined by the jury and the cause should have been determined by the court.
The court instead gave its 8th instruction above set out which informed the jury of the conditions under which tbe plaintiff might
not
recover, unless tbe jury further found that the servant was acting under express authority to eject persons from the room, or that the plaintiff in error by the exercise of reasonable diligence might have prevented the assault. In this we are unable to find reversible error.
The judgment of the court below is affirmed, with costs;
Burwell, J., who presided in the court below, not sitting; all the other Justices concurring.