Stone, Justice.
Appeal by plaintiff from judgment for defendant on the pleadings and opening statement of counsel for plaintiff, which makes the facts appear as follows:
December 25, 1934, plaintiff, Samuel Plotkin, was driving from Spring Park to Minneapolis. Following was a bus, operated by defendant company and driven by its employe. The bus had trouble passing Plotkin’s car. Plotkin did not hear the bus’s horn and failed to make room for the bus to pass on the left, as required by 1 Mason Minn. St. 1927, § 2720-14. After a time the bus did get ahead. In Crystal Bay the bus stopped at an intersection. Its driver walked back to Plotkin’s car, stopped at the same crossing, and after words about Plotkin’s previous failure to let the bus pass, struck Plotkin on the mouth. These facts, disclosed by complaint and opening statement of counsel for plaintiff, resulted in judgment for defendant.
The most explicit averment from the opening statement for plaintiff, and the one wherein the nearest approach is made to showing liability against defendant, was this:
“We will prove he [the bus driver] said he had to make schedule time, and wanted to get ahead of Mr. Plotkin. We will prove that he committed that assault in the scope of his employment, for the employer’s interest, so that he might have the road to himself, and not have Mr. Plotkin either follow him or precede him * *
Plaintiff’s theory is that the bus driver, in punching Plotkin, was within the scope of his employment by defendant, and that,
under the rule of
respondeat superior,
the latter is liable. But, absent nondelegable duty, such as that imposed by the relationship of carrier and passenger or hotel and guest, the servant’s battery does not make liability for the master unless the employment is of such a nature that it is likely to bring the former- into conflict with others. Such a case was Burnham v. Elk Laundry Co. 121 Minn. 1, 139 N. W. 1069. There was involved a battery by an employe of the laundry. It was the former’s duty to collect for his employer and to “preserve order on the premises.” He got into a dispute with a customer over the amount due. Verdict against the laundry was sustained under the rule of
respondeat superior.
See Restatement, Agency, § 245. See also Merrill v. Coates, 101 Minn. 43, 111 N.
W.
836.
Here the employment was not such as to bring the employe into conflict with others on the highway. Nor was the battery committed “as a part of or incident to a service” Avhich Avas to be performed. Restatement, Agency, § 235 (one of the “illustrations” of the application of that doctrine is paraphrased for paragraph one of the syllabus); 2 Mechem, Agency (2 ed.) § 1977. The bus driver, having secured precedence, stepped outside his duty to his employer to indulge his own anger. For distinction betAveen battery within and one without the scope of employment, see Johanson v. Pioneer Fuel Co. 72 Minn. 405, 75 N. W. 719.
It is not enough to make liability for the master that a battery by his servant would not have occurred except for the employment. The employment must be something more than mere occasion for the fracas. “It surely cannot be true that because the master has entrusted to a servant the performance of a duty, the master can be held responsible for whatever method the servant may adopt in attempting to perform it.” 2 Mechem, Agency (2 ed.) § 1978.
Absent authorization for or ratification of assault, absent also nondelegable duty, referred to above, there is no liability on the master unless the duties to be performed “involve the use of force against persons or things” or are “of such a nature that they are not uncommonly accompanied by the use of force.” Restatement,
Agency, § 245; see also 2 Mechem, Agency (2 ed.) § 1978 (where it is said that there must be something “indicating that the use of force was contemplated or usual.”);
Id.
§ 1977.
Lesch v. G. N. Ry. Co. 98 Minn. 435, 101 N. W. 965, was such a case. There a trespass was committed by servants of defendant who were employed to guard defendant’s shop and yards, prevent property from being taken therefrom, and to search for property that had been taken. Liability was imposed on the master, but the case is obviously one where the servant’s duties contemplated the use of force.
The distinction between duties contemplating the use of force and duties similar to those involved in the instant case is well recognized in the cases. See Morin v. People’s Wet Wash Laundry Co. 85 N. H. 283, 156 A. 499; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S. W. (2d) 801.
It is not sufficient that the battery is due to anger arising from performance of the servant’s duties, Brown v. Boston Ice Co. 178 Mass. 108, 59 N. E. 644, 88 A. S. R. 469; or that the battery may advance or be intended to advance the master’s interests. Morin v. People’s Wet Wash Laundry Co.
supra;
Rudgeair v. Reading Traction Co. 180 Pa. 333, 36 A. 859 (facts much similar to the instant case except that the person battered by defendant’s motorman was at the very moment blocking the advance of defendant’s streetcar).
The rule above stated may need qualification in cases where third persons hinder and obstruct the employe in the performance of his immediate duties and a battery is committed to expedite performance. Restatement, Agency, § 245, Illustration 6, p. 551; but see 2 Mechem, Agency (2 ed.) § 1978. But whether or not that qualification is ever proper, this case does not lie within its limits. Here the interference by plaintiff was past interference, not immediately hindering the driver of the bus. The only factor connecting the battery with the employment was the prevention of future annoyance. By the decided cases, that is not enough. Brown v. Boston Ice Co. and State ex rel. Gosselin v. Trimble,
supra.
At the moment here determinative, defendant’s driver was en
gaged in no business for Ms employer, and so what he did was not within the scope of his employment, nor, in the legal sense at least, in the furtherance of defendant’s affairs.
We cannot see much, if any, analogy between the assault now in question and a foul committed by one jockey upon another in the course of a horse race. McKay v. Irvine (C. C.) 10 F.
725.
There defendant was held liable for a foul committed by his jockey during the race, that is, in the scope of his employment and in furtherance of his master’s purpose to win the race if possible. If after that particular race was over the jockey had assaulted his competitor because of provocation given during the race, we would have a case comparable to this one, where, we take it, the master of the offending rider would not have been held liable.
In Comment d, Illustration 7, § 245, of the Restatement, Agency, there is a similar case.
“A is employed to drive P’s automobile. As T, a competitor, is passing the car which A is driving, A deliberately drives into T’s car, doing this to prevent T from passing and also because A does not like T. This act may be found to be within the scope of A’s employment.”
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Stone, Justice.
Appeal by plaintiff from judgment for defendant on the pleadings and opening statement of counsel for plaintiff, which makes the facts appear as follows:
December 25, 1934, plaintiff, Samuel Plotkin, was driving from Spring Park to Minneapolis. Following was a bus, operated by defendant company and driven by its employe. The bus had trouble passing Plotkin’s car. Plotkin did not hear the bus’s horn and failed to make room for the bus to pass on the left, as required by 1 Mason Minn. St. 1927, § 2720-14. After a time the bus did get ahead. In Crystal Bay the bus stopped at an intersection. Its driver walked back to Plotkin’s car, stopped at the same crossing, and after words about Plotkin’s previous failure to let the bus pass, struck Plotkin on the mouth. These facts, disclosed by complaint and opening statement of counsel for plaintiff, resulted in judgment for defendant.
The most explicit averment from the opening statement for plaintiff, and the one wherein the nearest approach is made to showing liability against defendant, was this:
“We will prove he [the bus driver] said he had to make schedule time, and wanted to get ahead of Mr. Plotkin. We will prove that he committed that assault in the scope of his employment, for the employer’s interest, so that he might have the road to himself, and not have Mr. Plotkin either follow him or precede him * *
Plaintiff’s theory is that the bus driver, in punching Plotkin, was within the scope of his employment by defendant, and that,
under the rule of
respondeat superior,
the latter is liable. But, absent nondelegable duty, such as that imposed by the relationship of carrier and passenger or hotel and guest, the servant’s battery does not make liability for the master unless the employment is of such a nature that it is likely to bring the former- into conflict with others. Such a case was Burnham v. Elk Laundry Co. 121 Minn. 1, 139 N. W. 1069. There was involved a battery by an employe of the laundry. It was the former’s duty to collect for his employer and to “preserve order on the premises.” He got into a dispute with a customer over the amount due. Verdict against the laundry was sustained under the rule of
respondeat superior.
See Restatement, Agency, § 245. See also Merrill v. Coates, 101 Minn. 43, 111 N.
W.
836.
Here the employment was not such as to bring the employe into conflict with others on the highway. Nor was the battery committed “as a part of or incident to a service” Avhich Avas to be performed. Restatement, Agency, § 235 (one of the “illustrations” of the application of that doctrine is paraphrased for paragraph one of the syllabus); 2 Mechem, Agency (2 ed.) § 1977. The bus driver, having secured precedence, stepped outside his duty to his employer to indulge his own anger. For distinction betAveen battery within and one without the scope of employment, see Johanson v. Pioneer Fuel Co. 72 Minn. 405, 75 N. W. 719.
It is not enough to make liability for the master that a battery by his servant would not have occurred except for the employment. The employment must be something more than mere occasion for the fracas. “It surely cannot be true that because the master has entrusted to a servant the performance of a duty, the master can be held responsible for whatever method the servant may adopt in attempting to perform it.” 2 Mechem, Agency (2 ed.) § 1978.
Absent authorization for or ratification of assault, absent also nondelegable duty, referred to above, there is no liability on the master unless the duties to be performed “involve the use of force against persons or things” or are “of such a nature that they are not uncommonly accompanied by the use of force.” Restatement,
Agency, § 245; see also 2 Mechem, Agency (2 ed.) § 1978 (where it is said that there must be something “indicating that the use of force was contemplated or usual.”);
Id.
§ 1977.
Lesch v. G. N. Ry. Co. 98 Minn. 435, 101 N. W. 965, was such a case. There a trespass was committed by servants of defendant who were employed to guard defendant’s shop and yards, prevent property from being taken therefrom, and to search for property that had been taken. Liability was imposed on the master, but the case is obviously one where the servant’s duties contemplated the use of force.
The distinction between duties contemplating the use of force and duties similar to those involved in the instant case is well recognized in the cases. See Morin v. People’s Wet Wash Laundry Co. 85 N. H. 283, 156 A. 499; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S. W. (2d) 801.
It is not sufficient that the battery is due to anger arising from performance of the servant’s duties, Brown v. Boston Ice Co. 178 Mass. 108, 59 N. E. 644, 88 A. S. R. 469; or that the battery may advance or be intended to advance the master’s interests. Morin v. People’s Wet Wash Laundry Co.
supra;
Rudgeair v. Reading Traction Co. 180 Pa. 333, 36 A. 859 (facts much similar to the instant case except that the person battered by defendant’s motorman was at the very moment blocking the advance of defendant’s streetcar).
The rule above stated may need qualification in cases where third persons hinder and obstruct the employe in the performance of his immediate duties and a battery is committed to expedite performance. Restatement, Agency, § 245, Illustration 6, p. 551; but see 2 Mechem, Agency (2 ed.) § 1978. But whether or not that qualification is ever proper, this case does not lie within its limits. Here the interference by plaintiff was past interference, not immediately hindering the driver of the bus. The only factor connecting the battery with the employment was the prevention of future annoyance. By the decided cases, that is not enough. Brown v. Boston Ice Co. and State ex rel. Gosselin v. Trimble,
supra.
At the moment here determinative, defendant’s driver was en
gaged in no business for Ms employer, and so what he did was not within the scope of his employment, nor, in the legal sense at least, in the furtherance of defendant’s affairs.
We cannot see much, if any, analogy between the assault now in question and a foul committed by one jockey upon another in the course of a horse race. McKay v. Irvine (C. C.) 10 F.
725.
There defendant was held liable for a foul committed by his jockey during the race, that is, in the scope of his employment and in furtherance of his master’s purpose to win the race if possible. If after that particular race was over the jockey had assaulted his competitor because of provocation given during the race, we would have a case comparable to this one, where, we take it, the master of the offending rider would not have been held liable.
In Comment d, Illustration 7, § 245, of the Restatement, Agency, there is a similar case.
“A is employed to drive P’s automobile. As T, a competitor, is passing the car which A is driving, A deliberately drives into T’s car, doing this to prevent T from passing and also because A does not like T. This act may be found to be within the scope of A’s employment.”
If defendant’s bus driver, in passing plaintiff’s car on the road, had run into it, intentionally or negligently, defendant might have been liable as for a tort committed by its servant in the course of his employment. That result would not follow, however, if after a collision on the highway and after both cars had come to rest, the bus driver had done as he did here and had assaulted plaintiff to satisfy anger arising from a past occurrence and not at all in furtherance of defendant’s interest in having its bus keep on schedule.
From the circumstances set forth in pleadings and opening statement, no jury could reasonably have found that the battery was committed'within the scope of the employment. Counsel for plaintiff was given every opportunity to amplify her opening statement, and did make use of that opportunity. It being clear that counsel stated the facts deliberately and- as she hoped to prove
them, it was “proper for the trial court to act upon the facts so asserted.” Mahutga v. M. St. P. & S. S. M. Ry. Co. 182 Minn. 362, 364, 234 N. W. 474, 475.
In argument there has been too much reliance for plaintiff upon the conclusion of fact, in counsel’s opening statement to the jury, that the battery was committed upon the plaintiff by the employe of defendant “in the scope of his employment and in the furtherance of defendant’s business and in the discharge of his duties.” In opening statement to court or jury much generality and conclusion may be used by counsel. But they should not forget, especially where, as here, a record of the utterance is being made, that the particular will control the general. Seldom, if ever, does that rule, both of logic and common sense, have an exception. The case for plaintiff fails because the particular facts, formally announced by his attorney to show liability, fail as matter of law to accomplish that result.
Judgment affirmed.