Cary v. Hotel Rueger
Decision Date | 03 May 1954 |
Court | Virginia Supreme Court |
Parties | JAMES E. CARY, SR., ADMINISTRATOR &C. v. HOTEL RUEGER, INCORPORATED, &C., ET AL |
George E. Allen; Allen, Allen, Allen & Allen and W. Hooker Harbour, for the plaintiff in error.
Robert G. Butcher and Parrish, Butcher & Parrish, for the defendants in error.
This is an action by James E. Cary, Sr., administrator of the estate of Homer Robert Cary, hereinafter referred to as plaintiff, against Hotel Rueger, Inc. and others, hereinafter referred to as defendants, to recover for the alleged wrongful death of plaintiff's decedent, which was caused by defendants' servant, one George Frazier (not a party to this action).
At the conclusion of the plaintiff's evidence the defendants moved the court to strike all the plaintiff's evidence, on the ground that it did not show that when Frazier committed the act complained of, he was acting within the scope of his employment. This motion was sustained, the jury then returned a verdict in favor of the defendants, and the court entered judgment thereon.
The sole question presented for our consideration is whether this action of the trial court was correct.
George R. Frazier, a bellboy in the employ of the defendants, around 3.00 a.m., on July 22, 1951, shot and killed Homer Cary. The shooting resulted from a dispute over money which Homer and his brother, Frank Cary, claimed Frazier owed them.
A short time before the shooting, Frazier, in response to a call from a guest on the eighth floor of the hotel, went to the basement for ice, placed it in the check room and stepped outside the hotel for a sandwich. Upon his return, he got the ice and started to the guest's room. In the lobby of the hotel he met the two Cary brothers and John Hunter, another bellboy. The Cary brothers accused Frazier of having received money belonging to them which he had not turned over. This he denied and asked them to wait there in the lobby until he delivered the ice, but they refused to do so, whereupon all four entered the elevator. When the reached the first floor Frazier stopped the elevator and asked the Cary brothers to get off and wait at the room they occupied on that floor until he returned. They refused to do so, and the argument continued while the elevator proceeded to the eighth floor.
Frazier testified that when the elevator stopped on the eighth floor,
Frazier testified on cross examination:
'
He also testified that 'it was strictly against the rules of the hotel' to traffic in women or whiskey, and that 'it was understood that I would be dismissed from the hotel and probably punished by law if I was caught trafficking in them. ' He further said that it was understood that when he was on duty he was not supposed to carry any weapons; that he was furnished with a private locker in which to keep his personal belongings.
The only other evidence offered on behalf of the plaintiff was a written statement of John Hunter, the other bellboy, which by agreement of counsel was read to the jury as a deposition and is as follows:
There is only one assignment of error and it is as follows: 'The Court erred in striking out the evidence offered on behalf of the plaintiff because the uncontradicted evidence showed that the bell boy at the time he shot Homer R. Cary was engaged in performing a service for the defendant which he was employed to perform and which was within the ordinary course of defendant's business and within the scope of the authority of the bell boy.'
This assignment of error, the briefs and oral argument have restricted and limited the question here to the single issue of whether the evidence shows that Frazier was acting within the scope of his employment when he shot Homer Cary. The plaintiff contends that 'the service itself in which the tortious act was done was within the ordinary course' of the defendants' business, and therefore the defendants are liable for the tortious act.
The real questions, however, are can it be said that the tortious act (1) was an act fairly and naturally incident to the business of the employer, and (2) was it done with a view to further the master's interests or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise from some external, independent and personal motive on the part of the servant to do the act upon his own account? Tri-State Coach Corporation v. Walsh, 188 Va. 299, 49 S.E. (2d) 363. See also, 2 Mechem on Agency (2d ed.) § 1960; 12 M.J., Master and Servant, § 99, p. 603.
If the employee steps aside from the employer's business to do acts not connected with such business, the...
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