Lowry v. Singer Sewing Machine Co.
Lowry v. Singer Sewing Machine Co.
Opinion of the Court
Opinion by
The plaintiff’s statement charges the defendant with responsibility for an assault and battery committed by one Goldberg who is alleged to have been its agent. The testimony in support of the action is to the effect that Goldberg and another man, whose name was Bylock, came to the plaintiff’s house and demanded a Singer sewing machine which she held on a lease with a privilege of purchase, on which lease there were arrears of rent. The plaintiff refused to give up the machine, whereupon Goldberg and Bylock undertook to carry it out of the house. The machine contained some things a part of which Goldberg or Bylock threw out of the drawers. The actual assault is thus described by the plaintiff: “Then I pulled the machine back to get the other things from the drawers and as I did he hit me in the stomach and knocked me against the gas stove and bruised my limb.” The machine was taken away by the men and placed in a wagon which had painted on the side the word “Singer.” The court refused, a motion for judgment of nonsuit, whereupon the defendant presented the offers of proof contained in the 4th, 5th and 6th assignments of error, by which it proposed to show that Goldberg’s action was purely that of a volunteer and not in the line of his duty nor within the scope of his employment. The specific offers were to prove that Goldberg had no authority to go to the house of Mrs. Lowry; that it was not a part of his duties to look after the Lowry account and that he was not acting within the scope of his employment nor by direction of the defendant in
The third and eighth assignments relate to the right of the defendant to remove the machine. The contract under which the plaintiff held the sewing machine provided for the payment of rent thereon at the rate of two dollars per month for twenty-two months and contained the provision that if default be made in any of said payments the lessee was to deliver the machine to the company and authority was also granted to the lessor or its agents “to enter the premises wherever said machine may be and take and carry the same away, hereby waiving any action for trespass or damages therefor.” The defendant offered to show that the plaintiff was in default in her payments of rent. This evidence was objected to and excluded. The jury would probably understand the language of the court as contained in the 8th assignment to mean that a lawfully authorized agent of
The judgment is reversed with a venire facias de novo.
Reference
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- Lowry v. Singer Sewing Machine Company
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- Syllabus
- Trespass — Assault and battery — Bailment—Removal of leased sewing machine. In an action against a sewing machine company to recover damages for assault and battery committed on the plaintiff by an alleged agent of the defendant while removing a sewing machine leased under a contract of bailment, it is reversible error for the court to refuse to permit the defendant to show that the person who committed the assault was not employed to remove the sewing machine, that no one having authority requested him to so act, and that his presence and actions at the time and place were wholly without the limits of his employment. In such a case where the contract of bailment gave to the defendant the right to enter the plaintiff’s premises if there should be a default in the payment of rental, and to take away the machine without liability in an action for trespass or damages, the defendant has a right to show a default in the payment of rent, and the plaintiff cannot claim that trespass was committed hy a proper employee of the defendant entering the house in order to remove the machine.