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there is no evidence that turner intended to serve

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Unformatted text preview: denied, 478 So.2d 53 (Fla. 1985); Kirschenbaum v. Rehfield, 539 So.2d 12 (Fla. 3d DCA 1989); Morrison Motor 46 Co. v. Manheim Services Corp., 346 So.2d 102 (Fla. 3d DCA 1977), cert. denied, 354 So.2d 983 (Fla. 1978); and Gibbs v. Air Canada, 810 F.2d 1529 (11th Cir. 1987). Restatement (Second) of Agency § 235 (1958) provides that "[an] act of a servant is not within the scope of employment if it is done with no intention [**41] to perform it as a part of or incident to a service on account of which he is employed." Further, it was observed in Annot., 34 A.L.R.2d 372, 379 (1954), that "there is general agreement that where an assault is purely personal to the servant, having no real connection with the master's business, the doctrine of respondeat superior is inapplicable to fasten liability upon the master." There is no evidence that Turner intended to serve Tallahassee Furniture or further any of its interests in any way in his New Year's Day attack upon Harrison. We agree with appellee that the evidence establishes without equivocation that Turner met Harrison through his job-related contact, and but for this initial contact, Turner would not have known anything concerning her residence or that she was single and lived alone, and would have had no means of gaining her confidence so as to obtain access into her apartment. It is clear, however, that Turner had not been instructed by his employer to obtain a receipt for the television set; instead, the request for the receipt was merely a ruse or pretext used by Turner for the purpose of gaining consent to enter Harrison's apartment. Furthermore, [**42] Turner's assault on Harrison was so outrageous and so far removed from the nature of his job as a [*759] furniture deliveryman that we can conceive of no theory under which his actions can be said to be within the scope of his employment. We do not hold that an employer can never be held liable for an assault committed by an employee. Rather, we hold only that under the facts of this case, the doctrine of responde...
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