Balinovic v. Evening Star Newspaper Co.

• Decision Date: 06 May 1940
• Docket Number: No. 7394.,7394.
• Parties: BALINOVIC v. EVENING STAR NEWSPAPER CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 F.2d 505 (1940)

BALINOVIC v. EVENING STAR NEWSPAPER CO.

No. 7394.

United States Court of Appeals for the District of Columbia.

Decided May 6, 1940.

Alvin L. Newmyer, David G. Bress, and Lewis H. Shapiro, all of Washington, D. C., for appellant.

Edmund L. Jones and George Monk, both of Washington, D. C., for appellee.

Before STEPHENS, EDGERTON, and RUTLEDGE, Associate Justices.

EDGERTON, Associate Justice.

Appellant Balinovic sued the Evening Star on the theory that its delivery truck, negligently driven by its driver, injured him in a collision. The question is whether the District Court was right in directing a verdict for the defendant because the driver had left his route, and his work of delivering papers, and was chasing a traffic violator at the command of a policeman who jumped on the running board and stayed there.

The accident occurred on June 23, 1933, before the passage of the statute which imposes liability on the owner of a car for the acts of any person who drives it with his consent,¹ and the mere fact that the Star had entrusted its car to its driver did not make it liable.²

Appellant urges that when an agent is sent out in charge of a car he is "impliedly authorized" by his principal to aid in law enforcement at the command of a policeman. This comes to saying that he may assume that his principal, if present, would authorize the act. That depends upon the principal's disposition, the agent's knowledge of it, and the other circumstances. Perhaps sympathy with law enforcement may be imputed to a newspaper. Perhaps this extends to a willingness to interrupt delivery of papers and risk damage to truck, driver and public in order to chase a criminal. But the fact remains that the Star's business is not chasing criminals but producing and selling papers. When its driver set out to catch a criminal he was doing the work of the District of Columbia.³

When B, for his own purposes, borrows, controls, and directs A's driver, B is responsible for the driver's negligence⁴ and A is not. An express authorization from an employer to his employee to do another's work under another's direction does not make the employer responsible for the employee's negligence in doing the work;⁵ and no implied authorization can be more effective than an express one. "The master's responsibility cannot be extended beyond the limits of the master's work." Whose work it is depends on "who has the power to control and direct the servants in the performance of their work."⁶

Governmental immunity of the borrower does not subject the lender of the servant to liability. In Denton v. Yazoo & Mississippi Valley R. R. Co.⁷ the plaintiff was injured by the negligence of a porter who was loading mail in a railroad car under the direction of a United States postal clerk. The porter was an employee of the railroad, hired and paid by it; but the Supreme Court held that the railroad was not liable. It said: "When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former."⁸ There, as here, the man alleged to have acted negligently was an employee of a private corporation. There the fact that he was doing public work under the direction of a public officer insulated the corporation from responsibility. A fortiori the same fact insulates the corporation here; for chasing criminals is more remote from the Star's work than loading mail was from the railroad's work. The railroad regularly carried mail. It regularly furnished men to load it. It was paid for doing so. It directed its porter to do the very work which he was doing when he injured the plaintiff. The Star, on the other hand, did not regularly participate in any direct way in the enforcement of the criminal law, was not paid to do so, and did not direct its driver to do so.

We need not decide whether the Star was obligated to furnish to the District a car and a man for use in catching criminals. Even if it was, it was not responsible to other persons for the man's negligence in doing the work. The railroad in the Denton case was obligated to furnish to the United States a car and a man for use in loading mail, and the Supreme Court held, unanimously, that the railroad was not responsible to other persons for the man's negligence in doing the work. It is true that the railroad's duty was created by a contract and the Star's supposed duty was not. But we know of no reason why a duty which is independent of contract should extend responsibility for negligent injury of bystanders farther than a duty which results from contract. It is urged that it was part of the Star's business, in the circumstances of this case, to supply equipment and man power to the government. This can be true only if the word business is used in an unusual and extended sense. And in the circumstances of the Denton case it was part of the railroad's business to supply equipment and man power to the government, not only in such senses as can be urged here with respect to the Star but in the further senses that the railroad did so constantly and did so for profit. It is urged that it was the driver's duty not only to the public, but to the Star, to submit to the policeman's order. Even if that were true, it would not make the Star liable. In the Denton case it was the porter's duty to the railroad to submit to the postal clerk's order.

In the light of the Denton case we need not discuss at length Babington v. Yellow Taxi Corporation,⁹ on which appellant relies. There a cab company's driver was killed while chasing a criminal on the order of a policeman, and the New York court sustained an award of compensation against the company. The cab, unlike the Star's truck, was subject to call for any lawful journey. Moreover, the limits of workmen's compensation and of tort liability are not necessarily identical. The Star, by putting the driver on the road and keeping him there, did not create the risk that the criminal-catching activities of the District would injure a bystander. Whether it created the risk that those activities of the District would injure the driver, with the result that an injury to him in the course of those activities might be regarded as arising out of and in the course of his employment by the Star, is a question which we need not decide.

Affirmed.

RUTLEDGE, Associate Justice (dissenting).

In my judgment the issue is not one of private, consensual agency.¹ Not all vicarious liability rests on consent of the principal, express or implied in fact, whether to the existence of the representative relation or to the particular activities of the agent which result in the claim of liability. Plaintiff does not contend that defendant consented in fact to the driver's criminal-chasing activities. He says that liability arises regardless of such consent and because, at the time of the injury, the driver was discharging a duty imposed by law upon the defendant, not merely as part of its newspaper operations in the narrow business sense, but as part of its broader obligation as a corporate citizen of the community.² Such a duty, if it exists, is inescapable by mere failure to consent or by refusal to perform it.³

Individuals, it is admitted, are under a duty to respond with their persons and property to a proper officer's summons for assistance in suppression of crime or apprehension of criminals.⁴ Nor is it denied that they may become liable for injuries to third persons caused by the negligent or wrongful manner in which the duty is discharged,⁵ although the boundaries of negligence and other misconduct may differ from those applicable to more normal activities.⁶ It is urged that corporations are not immune to a similar duty and liability.

The foundation of the duty is both historical⁷ and reciprocal to protection from criminal activities conferred through the policing of the community. Individuals and corporations alike receive the protection, regardless of their individual or corporate character and regardless of the nature of their primary business or personal activities. Therefore, it is said, a like duty is imposed upon both, and they are subject in equal degree to the burdens incident to receiving the common protection, one of which is to respond to the summons in circumstances like these with all appropriate resources of man power and equipment. Whatever may have been true under ancient conceptions of the limited nature of corporate existence and activity,⁸ appropriate for a world largely unincorporated, it is too late in an incorporated age for corporations to claim exemption from such an obligation, which is common to all citizens and arises from benefits given to all alike, whether they be individuals or corporations.⁹ The foundation of the duty and the capacity to discharge it are appropriate to corporations no less than they are to individuals. No valid reason for exempting them appears.

It follows, therefore, that corporations, by virtue of being such or of charter-imposed limitations upon the scope of ordinary business activities, are not immune to the general burden of response or to whatever liabilities it may involve. Clearly, therefore, it was the corporation's duty to surrender or supply the truck for the officer's use. Necessarily, if this was true, it was the driver's duty, not only to the public, but to his employer, to recognize and submit to the officer's order. He was in charge of the truck and, as its custodian, stood in the place and stead of his incorporeal lord concerning its disposal when the order came. It was directed to him, not merely as an individual or passerby, a man of muscle or marksmanship, but as the custodian and driver of the defendant's vehicle. Had he not been such, it would not have been given to him. In complying, therefore, he acted not...