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. 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 *813 from the blow, and that said defendant was at the time "Acting within the scope of his employment as the agent, servant, …show more content…
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. 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. Pitching for the Nashville Vols was Gerry Lane, a resident of Chattanooga, and catching was the defendant Averill. 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