Master and Servant. In an action against a corporation manufacturing sewing machines for an assault on the plaintiff alleged to have been committed by a servant of the defendant in taking from her a sewing machine for non-performance of the conditions of a contract of conditional sale, there was evidence that one S. was employed by the defendant to take machines on failure of the purchasers to pay for them in accordance with the conditions of their contracts, that his instructions were to take the machine if he could get it peaceably, and, if not, to report the matter, whereupon his superior would replevy the machine, that he had men under him to do business and was supposed to handle these men, that he employed one A. to assist him in removing the machine in question, having made a sham sale from the defendant to A. for the purpose of giving him an apparent title, and that A. in attempting to remove the machine was resisted by the plaintiff and committed the assault. Held, that a verdict for the plaintiff was justified, the defendant being liable for the acts of A. in the course of his employment, even if A. had been told not to use force.
LORING, J. [After the foregoing statement of the case.]
The evidence warranted a finding that Sexton was authorized to employ assistants; that he had employed Andrews to assist him in retaking the plaintiff's machine, and that the sale to Andrews was a sham.
It is settled that the defendant would be liable for force used by Andrews as a means of retaking the machine, even if he had been told not to use force. Roberge v. Burnham, 124 Mass. 277. George v. Gobey, 128 Mass. 289. The defendant's liability does not depend upon his having been authorized expressly or impliedly to use force, but upon his having used force as a means of doing what he was employed to do. Howe v. Newmarch, 12 Allen, 49. McCarthy v. Timmins, 178 Mass. 378. Perlstein v. American Express Co. 177 Mass. 530. There is no difference between hiring a man to retake a machine with instructions not to use force, and instructing an officer in hiring men to retake machines to hire them to retake machines without using force.
There was no evidence in the case calling for the fifth ruling as to an assault for the purpose of revenge.
The defendant's counsel have not taken up the several exceptions in their argument. We have followed their argument and have not dealt with the exceptions separately.
Exceptions overruled.