Assault and Battery. Agency. In an action against the administrator of the estate of a person who had been financing a certain corporation for an assault and battery alleged to have been committed by a servant of the defendant's intestate, who was employed by the corporation as its factory manager, in ejecting the plaintiff from the factory building, a judge, before whom the case was tried without a jury, ruled at the defendant's request that unless the plaintiff proved by a preponderance of the evidence that the defendant's intestate personally ordered the ejection of the plaintiff from personal motives the plaintiff could not recover, and the defendant contended that the evidence was insufficient to warrant a finding that the order was given from "personal motives." The judge upon conflicting evidence found for the plaintiff. Held, that the question whether the person who committed the assault was acting as the servant of the defendant's intestate or as the servant of the corporation was one of fact and not of law and that the finding of the judge was warranted.
HAMMOND, J.
At the request of the defendant the judge ruled that unless the plaintiff proved by a preponderance of the evidence that the defendant's intestate "personally ordered the ejectment of the plaintiff from personal motives the plaintiff could not recover;" and the defendant insists that the evidence is insufficient to warrant a finding that the order was given from "personal motives."
Upon a careful perusal of the evidence we are of opinion that this question was not one of law but one of fact for the trial judge, and we cannot say that he erred in law in finding for the plaintiff. There was no error in the manner in which he dealt with the requests for rulings.
Exceptions overruled.