Clemmons v. Life Insurance
Clemmons v. Life Insurance
Opinion of the Court
G.S. 1-161 requires the Court to construe liberally a pleading challenged by demurrer with a view to substantial justice between the parties, and the demurrer will not be sustained unless the complaint is fatally and wholly defective. Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E. 2d 98. It is axiomatic that a demurrer admits, for the purpose of testing the sufficiency of the pleadings, the truth of factual averments well stated and all relevant inferences of fact reasonably deducible therefrom. Corprew v. Chemical Corp., Id.
Under the allegations of the present complaint, if there was an assault upon the plaintiff by the agent, it occurred when the agent . . produced a pistol in his hand which he pointed at the plaintiff . . . (and) said to the plaintiff- ... I will shoot you . . .” We may assume that the defendant did not authorize or desire such conduct on the part of its agent, but that is not the question presented. The question to be determined is whether, under a liberal construction, the complaint alleges facts from which it can be seen, or reasonably deduced, that the agent was acting in the furtherance of the defendant’s business.
When the employee is undertaking to do that which he was employed to do and, in so doing, adopts a method which constitutes a tort and inflicts injury on another, it is the fact that he was about his master’s business which imposes: liability. That he adopted a wrongful or unauthorized method, or even a method expressly prohibited, does not excuse the employer from liability. West v. Woolworth Co., 215 N.C. 211, 1 S.E. 2d 546.
The defendant seeks to lift from this diatribe by the agent the intervening protestations by the plaintiff that the agent leave her premises, and asserts that the drawing of the pistol was only in response to plaintiff’s demand; therefore, defendant asserts, the pointing of the pistol constituted a departure from the furtherance of the defendant’s business. Defendant relies heavily upon Wegner v. Delicatessen, 270 N.C. 62, 153 S.E. 2d 804.
We view the Wegner case as factually distinguishable. There the agent completely turned away from his duties as bus boy for the purpose of gratifying some unexplained personal animosity towards a customer; his assault upon the customer was not made in an effort to accomplish his duties as bus boy. In the instant case, the allegations show the agent’s entire course of conduct to be designed to impress upon the plaintiff that she must have the money ready when he came back for it, and that she could not frustrate his efforts by ordering him off her premises. The allegations show that his entire course of conduct was directed towards obtaining the prompt future payment of premiums on the defendant’s insurance contract (the very service which it is alleged he performs for. the defendant).
We hold that the allegations of the complaint are sufficient to withstand defendant’s demurrer. Whether the plaintiff can make out a case upon a trial is a different matter.
Reversed.
Dissenting Opinion
dissenting: I am constrained to dissent from the majority holding in this case. The facts sufficiently appear in the majority opinion, but I am of the opinion that the plaintiff has over-pleaded her case. The complaint shows on its face that the agent Weeks went to the home of the plaintiff for the purpose of collecting insurance premiums and when payment was refused expressly stated:
As shown by the complaint, however, the plaintiff brought on the assault when she requested Weeks to leave her premises. Her language can only be surmised, but the complaint states that Weeks replied: “You don’t talk to me like that, woman,” and produced a pistol and proceeded to assault the plaintiff with the pistol, saying “I will shoot you.”
The complaint shows that the agent Weeks then proceeded out into the front yard and at that point he did not continue to assault the plaintiff but instead it states that Weeks “berated” the plaintiff for not having the money to pay the insurance premium. Webster’s Third New International Dictionary (1968) defines the word “berate” as “to heap reproaches on; criticize vigorously; scold or chide vehemently.” It certainly does not mean an assault. The assault had terminated when the agent Weeks left the immediate vicinity of the plaintiff. The assault was in connection with the plaintiff’s request that the agent Weeks leave her premises and it had no connection with or relation to the purpose of collecting the premium on behalf of the defendant.
The assault was clearly without the scope of the agency. This case is controlled by the decision of Wegner v. Delicatessen, 270 N.C. 62, 153 S.E. 2d 804, where the Court said: “However, the assault, according to the plaintiff’s testimony, was not for the purpose of doing anything related to the duties of a bus boy, but was for some undisclosed, personal motive.” In the instant case, the alleged facts are stronger for the defendant because, according to the allegations of the plaintiff herself, the assault was not for the purpose of doing anything related to the duties of collecting an insurance premium but was because of a disclosed personal motive — the agent Weeks was offended by the manner in which the plaintiff had spoken to him.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.