Cary v. Hotel Rueger

Decision Date03 May 1954
CourtVirginia Supreme Court
PartiesJAMES 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.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

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, 'I reached behind me to pick up the pitchers that I had ice cubes in, that is when Frank Cary, * * * grabbed me by the left arm and Homer Cary threatened and also cursed at me, which he had already threatened before, and in the squabble with Frank Cary I was trying to get away from him to leave the elevator. Prior to that, when Homer Cary threatened me, he reached in his pocket as if he was reaching for something. * * * When he was reaching for something, I thought it was time for me to do something to defend myself, with one grabbing me and the other reaching for his pocket, and I had a small automatic in my pocket, which I drew and accidentally fired.'

Frazier testified on cross examination:

'Q. George, you have been asked a number of questions here regarding money that the Carys said that you had that belonged to them, and I think you also said that you had been called up to their room on several occasions before this final altercation took place. Under what circumstances did they say that you had money that belonged to them?

'A. It was money that I was supposed to have. I was accused of taking two girls up there that they had on some dates. That is the nature of the calls from the room. Each time they called up, they wanted to know if they could get someone to cooperate with them and two girls to hustle in the house.'

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: 'I got a call to go to Room 120 about 2:55 a.m. and a white man in that room said I owed him some money. I told him that I did not owe him any money, that it might be No. 11; that it was the two of us on duty. He then said, 'Where is the other boy' and I told him the other boy was downstairs. He said, 'We will go downstairs and see the other boy' and we got on the elevator and went downstairs. George (No. 11 Bellboy) was on the first floor with an ice bucket in his hand and said he was going to 8th floor to carry ice. Two boys (they are brothers but I do not know their names) George and myself got on the elevator and was going up to the 8th floor. These two fellows told George he owed them some money and it was going to be a fight if he did [not] pay them the money. George said 'make it light on yourself' and jumped back and pulled out a pistol and shot one time. He had stopped the elevator at the 8th floor before shooting.'

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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12 cases
  • Parker v. Carilion Clinic
    • United States
    • Virginia Supreme Court
    • November 1, 2018
    ...and servant is for the time suspended and the servant is not acting within the scope of his employment." Cary v. Hotel Rueger, Inc. , 195 Va. 980, 984, 81 S.E.2d 421 (1954) (emphases added); see Commercial Bus. Sys., Inc. , 249 Va. at 44-46, 453 S.E.2d 261 (applying this principle to distin......
  • Dao v. Faustin
    • United States
    • U.S. District Court — Eastern District of Virginia
    • August 29, 2019
    ...is not sufficient to impose respondeat superior liability on the employer." Blair , 386 F.3d at 627 (citing Cary v. Hotel Rueger, Inc. , 195 Va. 980, 986, 81 S.E.2d 421 (1954) ). The holding by another district court within this district in Jones v. Tyson Foods, Inc. , 378 F. Supp. 2d 705 (......
  • Clehm v. Bae Sys. Ordnance Sys., Inc.
    • United States
    • U.S. District Court — Western District of Virginia
    • December 1, 2017
    ...superior liability on BAE, however. Jones v. Tyson Foods, Inc., 378 F.Supp.2d 705, 713 (E.D. Va. 2004) (citing Cary v. Hotel Rueger, Inc., 195 Va. 980, 81 S.E.2d 421 (1954) ), aff'd, 126 Fed.Appx. 106 (4th Cir. 2005). Under Virginia law, "an employer is liable [under the doctrine of respond......
  • Hunter v. Board of Educ. of Montgomery County
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    • January 7, 1982
    ...Mut. Casualty Co., 142 F.2d 100 (D.C.Cir.1944); Averill v. Luttrell, 44 Tenn.App. 56, 311 S.W.2d 812, 814 (1957); Cary v. Hotel Rueger, 195 Va. 980, 81 S.E.2d 421, 424 (1954); Brazier v. Betts, 8 Wash.2d 549, 113 P.2d 34, 39 (1941); Linden v. City Car. Co., 239 Wis. 236, 300 N.W. 925, 926 (......
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