Broaddus v. Standard Drug Co.

• Decision Date: 08 March 1971
• Parties: Charles A. BROADDUS v. STANDARD DRUG COMPANY, Incorporated, et al.
• Court: Virginia Supreme Court

Page 497

179 S.E.2d 497

211 Va. 645

Charles A. BROADDUS v. STANDARD DRUG COMPANY, Incorporated, et al.

Supreme Court of Appeals of Virginia.

March 8, 1971.

Rehearing Denied April 27, 1971.

S. W. Tucker, Richmond (Hill, Tucker & Marsh, Richmond, on brief), for plaintiff in error.

Harry P. Anderson, Jr., J. Robert Brame, III, Richmond (George E. Haw, Jr., Willard I. Walker, Anderson, Haw, Parkerson & Beazley, McGuire, Woods & Battle, Richmond, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRIAN and HARMAN, JJ.

HARRISON, Justice.

In his motion for judgment the plaintiff, Charles A. Broaddus, sought to recover damages for personal injuries from defendants, Standard Drug Company, Incorporated, Clarence E. Williams, The William J. Burns International Detective Agency, Incorporated and Robert Lee Troutner. He alleged that he was assaulted by Williams, agent of Standard and Burns, and was shot by Troutner, agent of Burns and Standard.

Service of process was never obtained on Troutner. The case proceeded to trial against all other parties. The court below struck the evidence as to Standard and entered summary judgment in its favor. The jury returned a verdict for Williams with respect to his alleged assault on the plaintiff, and for Williams and Burns with respect to the alleged shooting. The court entered final judgment for the defendants, and we granted plaintiff a writ of error.

Standard operates a store located at 1st and Broad Streets in Richmond. The store is served by two parking lots. One lot runs from the south side of Marshall Street to the rear of the store. The other lot is directly across Marshall and extends in a northerly direction.

On December 14, 1966 Williams, a member of the Richmond police force, was assigned to the 'shoplifting detail' and was patrolling the downtown Broad Street stores. At 6 P.M., dressed in civilian clothes, he entered Standard's store and about five minutes thereafter noted the entrance of Broaddus and four companions. He observed that the men appeared to be splitting up. One in the group went to the check cashing counter, three to the food concession counter, and Broaddus to a point at the top of steps that lead to the store's basement.

Broaddus noticed that Williams' hat was pulled down over his ears. He called this to the attention of his companions and they all laughed. Williams said that Broaddus appeared to be giving signals to the others. He then approached Broaddus and inquired 'what was so funny'. He told plaintiff that he was a police officer, and asked him if he had any identification. Broaddus demanded identification of the officer. Williams showed Broaddus his badge. This apparently did not satisfy plaintiff for he again demanded identification of the officer and Williams again exhibited his badge. The officer testified that at this time plaintiff said, 'You still haven't showed me any identification', spoke 'in a more than normal voice' and 'got loud'. The officer then said, 'I told him, * * * 'Do you mind stepping outside? " The parties started toward the steps which led to the rear entrance.

Williams testified that before reaching the steps Broaddus was walking a little ahead and that when his left arm got close to the officer's right hand he put his hand up on plaintiff's arm; that when plaintiff got ready to go down the steps, 'that's when he whirled and started back toward me'. The officer pushed him and a violent scuffle ensued, which resulted in Broaddus being pushed through the rear glass door of the store, landing outside.

The version of Broaddus is that when he refused to show Williams some identification, Williams grabbed him by the arm, slung him around and said come on and go outside. Plaintiff claimed that he was off balance on the steps when he grabbed Williams, and that he was pushed down the steps and shoved or knocked through the glass door.

William T. Holder, Standard's assistant manager, witnessed the altercation. He heard the two demands made by Broaddus of the officer for identification and saw Williams remove his folder twice and show Broaddus something which he assumed was a badge. Holder said that when the officer and plaintiff started down the three steps that led to the rear entrance Williams was very close behind Broaddus, but he did not think they were touching. He said that on the second or third step Broaddus 'turned around and either grabbed or pushed or hit, or whatever he did he went back against the officer face to face, and this is when they started the scuffle'. He said initially there was more pushing or shoving than hitting because the officer was wearing a heavy coat, but that after they got to the back door Broaddus was pushed through the door.

The officer testified that on the outside of the store, when he tried to get plaintiff up, Broaddus grabbed him by the leg, tried to pull him down and also endeavored to pull his legs apart. At this time the officer hit plaintiff with his fist. The parties continued fighting until the officer pulled his revolver and cocked it, advising plaintiff that if he hit him one more time he would shoot him. At this point Troutner, dressed in a Burns uniform, ran up from the rear of the parking lot to the officer's left. Williams noted that Troutner approached 'as if he were going to get the revolver from his holster'. Williams said that this made him automatically put his revolver back because he was a plainclothes policeman and Troutner did not know who he was.

At about the same time city police officer Nelson E. Whitt, who had been in the store and heard the commotion in the back, came up on Williams' right and inquired 'what was wrong' and if everything was under control. According to Williams, Whitt said to Troutner, 'OK, get back. This is a police officer'. Whitt testified that he recognized Williams as being a plainclothes police officer, and that Williams then had Broaddus backed up against the building. Williams also testified that Whitt told the group gathered around the officer and Broaddus, 'Everybody get back, this is a police officer making an arrest'. One of plaintiff's companions, Richard Adams, apparently insisted that the police had to let 'this follow that he had go, that it was just a big misunderstanding'. Whitt said he told Adams three or four times to leave and that when he refused he placed him under arrest. Adams broke from the crowd and ran back into the store with Whitt in pursuit. Prior to this incident Whitt had called the patrol wagon.

Williams noted that the crowd was moving in, and, observing another of plaintiff's friends behind him, he told the man to get back. When he didn't comply Williams 'went to reach for him to get him over in the crowd'. During the time that his attention was directed to this individual Broaddus ran.

When Williams looked around Broaddus was running north in the parking lot with Troutner in pursuit. They continued to Marshall Street where Broaddus turned east and ran some distance along that street before being shot by Troutner. Williams testified that during the pursuit he heard somebody holler 'halt'. He could not tell who it was for plaintiff and Troutner had gotten out of his view, and Williams was some distance behind them. Williams also heard some unknown person behind him say 'shoot'. It is not controverted that Broaddus was shot by Troutner, and that he sustained serious personal injuries.

Clearly Officer Williams was not an agent or employee of Standard and this allegation in plaintiff's motion was not substantiated.

As to the liability of Standard.

We agree with the action of the trial court in striking the evidence as to Standard and entering summary judgment in its favor. Standard contracted with Burns to provide one of their guards to handle the traffic on the store's parking lots. Troutner was the guard who was provided and on duty the day in question. It was understood that the guard was also to accompany the employee from Standard who made deposits at the bank. The record is conclusive that this was the sole duty of the guard and that he had nothing to do with the store. Standard employed its own security police for that purpose.

The guards were employed, discharged, paid and controlled by Burns. Standard had no voice in their selection or the choice of the guard to be assigned to the parking lots. The guards were instructed as to their duties by a supervisor of Burns. If a guard proved unsatisfactory, Burns was notified by Standard and a different one would be assigned. Standard had little contact with the guards. Under these circumstances no master-servant relationship existed between Standard and Troutner. The question remains whether Standard is liable in its status as the employer of an independent contractor.

In Norfolk & Western Railway v. Johnson, 207 Va. 980, 983--984, 154 S.E.2d 134, 137 (1967), Mr. Justice I'Anson reviewed numerous cases decided by this court dealing with exceptions to the general rule relating to the liability of an employer of an independent contractor. There it was stated:

'The general rule in Virginia, as elsewhere, is that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. (Citing authorities.) There are exceptions to the general rule with respect to work which is unlawful, a nuisance, inherently dangerous, or will in the natural course of events produce injury unless special precautions are taken. (Citing cases.)'

The opinion also makes reference to Ritter Corporation v. Rose, 200 Va. 736, 107 S.E.2d 479 (1959) and points out that the exception in Ritter was not limited to activities which are ultra hazardous in the sense that they create danger which cannot be eliminated even with the utmost due care. We further said:

'Ritter does not mean, however, that an employer is liable for every activity which will...