Certiorari Denied by Supreme Court February 6, 1958.
The parties will be referred to as they appeared in the trial court.
In this action the plaintiff, Lyle Luttrell, a professional baseball player with the Chattanooga Baseball Club, sued the defendants, Nashville Baseball Club, a Corporation, and Earl Averill, Jr., one of its players, for damages for an assault and battery committed by Averill upon plaintiff during the playing of one of the regularly scheduled games between these two teams at Engel Stadium, in Chattanooga, Tennessee, on the night of August 20, 1955. Both Clubs, known as the Chattanooga Lookouts and Nashville Vols, are members of the Southern Baseball Association.
Plaintiff's declaration alleges in substance that the defendant, Earl Averill, Jr., without reasonable cause or justification, struck plaintiff from behind with such force and violence that he not only suffered a fractured jaw but was rendered unconscious
Defendants separately filed pleas of general issue and numerous special pleas denying liability.
At the conclusion of plaintiff's proof motions for directed verdicts made on behalf of both defendants were overruled, and the Nashville Baseball Club electing to stand on its motion did not introduce any evidence. The trial resulted in a jury verdict for the plaintiff against both defendants for $5,000, and motions for a new trial having been made and overruled, only the defendant Nashville Baseball Club has appealed. No questions are made regarding the extent of plaintiff's injuries or the amount of the verdict.
By assignments of error it is urged on behalf of the Nashville Baseball Club that the trial court should have sustained its motion for a directed verdict made at the conclusion of plaintiff's proof, because plaintiff introduced no evidence that the assault committed by Averill was within the scope of his employment, or in the prosecution and furtherance of the business of this defendant.
According to the undisputed proof the assault occurred during the 6th inning of the game while the plaintiff, who played the position of shortstop for the Chattanooga Lookouts, was batting for his team. Pitching for the Nashville Vols was Gerry Lane, a resident of Chattanooga, and catching was the defendant Averill. The contest between the teams was keen and the players as well as the fans were tense with excitement, some of which was probably due to Lane's pitching against his home town team. Lane had made three pitches known as curves or sliders, called by the Umpire as "balls," and on each Luttrell had stepped forward to meet the hall before the break or curve started. These balls barely missed Luttrell, who had to dodge, and his teammates and the crowd got the impression that he was being, in baseball parlance, "dusted off" by Lane, who on his fourth pitch hit Luttrell on the seat of his pants.
The incidents leading up to the assault were described by Luttrell as follows:
It appears that immediately after Luttrell threw his bat in the direction of the pitcher's mound that Averill, without any warning whatsoever, stepped up behind Luttrell and struck him a hard blow on the side or back of the head with his fist. The force of the blow rendered Luttrell unconscious, and on falling face first to the ground he sustained a fractured jaw. Thereafter the players and the fans generally, who rushed out upon the field, engaged in what was described as a "free for all" until the police arrived in sufficient force to restore order, after which the game was continued. Meantime Luttrell was removed by ambulance to the hospital, and Averill, who was put out of the game by the umpire, was arrested.
It was undisputed that there was no previous "animosity or malice" between Averill and Luttrell, who testified that when they spoke "it was on friendly terms." Nor was there any proof showing that Averill had ever committed a similar act, or that his employer should have anticipated his unwarranted assault.
It was conceded that the assault made by Averill "was no part of the ordinary risks expected to be encountered in sportsmanlike play." Nor was there any proof showing that the assault was other than a wilful independent act on Averill's part, entirely outside the scope of his duties. The assault was neither incident to nor in the furtherance of his employer's business, and under the circumstances we think that the Nashville Baseball Club would not be liable under the doctrine of respondeat superior, and that the learned trial judge should have sustained the defendant's motion for a directed verdict made at the conclusion of the plaintiff's proof.
It seems to be the rule generally that a master is not liable for the wilful acts of his servant who steps aside from his master's business and commits an act wholly independent and foreign to the scope of his employment. Goff v. St. Bernard Coal Co., 174 Tenn. 558, 129 S.W.2d 205; Terrett v. Wray, 171 Tenn. 448, 105 S.W.2d 93; Standard Tire & Battery Co. v. Sherrill, 170 Tenn. 418, 95 S.W.2d 915; Hoover Motor Express Co. v. Thomas, 16 Tenn. App. 664, 65 S.W.2d 621; Hunt-Berlin Coal Co. v. Paton, 139 Tenn. 611, 202 S.W. 935; Woody v. Ball, 5 Tenn.App. 300; Druffenbroch v. Lawrence, 7 Tenn. Civ. App. 405; 35 Am.Jur. Sec. 552, p. 983; 57 C.J.S. Master and Servant §§ 570, 572, 574, 575, pp. 313, 322, 323, 341; Annotation 34 A.L.R.2d 402, et seq.
The applicable rule is stated in 57 C.J.S., as follows:
In support of the above rule, there are numerous cases cited in the footnotes, including Hoover Motor Express Co. v. Thomas, supra, and Atlanta Baseball Co. v. Lawrence, 38 Ga.App. 497, 144 S.E. 351, 352, in which the Court said:
Accordingly, for reasons indicated, the judgment against the Nashville Baseball Club will be reversed, and the suit as to this defendant will be dismissed at plaintiff's costs.
McAMIS, P.J., and HALE, J., concur.