Carmelo v. Miller

• Decision Date: 18 July 1978
• Docket Number: No. 38706,38706
• Parties: Eduardo CARMELO, Appellant, v. Delbert MILLER, Jr., Clifton W. Gates, Howard F. Ettings, Vincent G. Rogers, A. J. Cervantes, as members of the Board of Police Commissioners of the City of St. Louis, Missouri, and Ronald Strothman, Barry Awalt, George McDonagh, and St. Louis National Baseball Club, Inc., a corporation, Respondents. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 365

569 S.W.2d 365

Eduardo CARMELO, Appellant, v. Delbert MILLER, Jr., Clifton W. Gates, Howard F. Ettings Vincent G. Rogers, A. J. Cervantes, as members of the Board of Police Commissioners of the City of St. Louis, Missouri and Ronald Strothman, Barry Awalt, George McDonagh, and St Louis National Baseball Club, Inc., a corporation, Respondents.

No. 38706.

Missouri Court of Appeals, St. Louis District, Division Four.

July 18, 1978.

Goldstein, Tessler, Brown & Geigerman, Steve K. Brown, Clayton, for appellant.

Jack L. Koehr, City Counselor, John J. Fitzgibbon, Associate City Counselor, St. Louis, for Delbert Miller, Jr., et al.

Roberts, Heneghan & Coffelt, Inc., Jay G. Newquist, St. Louis, for Ball team.

ALDEN A. STOCKARD, Special Judge.

Plaintiff sought actual and punitive damages for assault and battery and false imprisonment. The trial court directed a verdict in favor of all defendants, and plaintiff has appealed.

On the night of August 4, 1971, plaintiff attended a baseball game at the Busch Memorial Stadium. During the latter part of the game defendants Awalt, Strothman and McDonagh, members of the St. Louis Police Force who had "secondary employment" by the St. Louis National Baseball Club (hereafter Baseball Cardinals) as security guards, received information that someone was displaying a gun at one of the concession stands. The information included the description of two men who were involved in the incident. One was a Mexican wearing a red shirt and black pants, and the other was a black male wearing gold colored pants. The officers did not find anyone at or near the concession stand fitting either of these descriptions, but the game had ended and two of the officers left the stadium to look for persons meeting the descriptions. In a nearby parking lot they observed appellant, who was a Mexican and was wearing a red shirt and black pants, and his companion, who was black and was wearing gold colored pants. Appellant and his companion were stopped and searched, but neither had a gun and none was found in the area. Appellant was placed under arrest and was taken to the 4th District Police Station but no charges were filed against him.

Appellant testified that at the time the police stopped him in the parking lot he was beaten and kicked and sustained injuries requiring medical treatment. This was denied by the three officers.

We will first consider appellant's claim against the Baseball Cardinals.

The three police officers as members of the St. Louis Metropolitan Police Department were "on duty" 24 hours a day. During their "secondary employment" by the Baseball Cardinals they did not lose their status as police officers. Officer Strothman went to the concession stand when it was reported to him by an usher that a person there was displaying a gun, and he there met officers Awalt and McDonagh. When he and Officer McDonagh left the stadium Officer Awalt remained in the area in an attempt to locate witnesses. However, the game had ended and the area was a "mass of confusion" with people trying to leave the stadium so he remained at the concession stand only a few minutes. He then "checked out" himself and the other two officers from their duties with the Baseball Cardinals and joined officers Strothman and McDonagh at the parking lot where they had stopped appellant and his companion.

Plaintiff charged the Baseball Cardinals with vicarious liability as the employer of the three police officers. A private employer is not immune from liability for the negligent or wanton acts of an employee performed within the scope of his duties for the reason that the employee has an official status as a police officer. Neallus v. Hutchinson Amusement Co., 126 Me. 469, 139 A. 671 (1927); Leach v. Penn-Mar Merchants Association, Inc., 18 Md.App. 603, 308 A.2d 446 (1973); 53 Am.Jur.2d Master and Servant § 416; 57 C.J.S. Master & Servant § 565; Annotation, 55 A.L.R. 1197. However, where the employee occupies a dual status, that is, as an employee and also as a police officer, in the absence of a statute, where the employer does no more than relate the material facts to the officer and leaves to him the decision as to what he should do as a police officer, the employer is not liable for the acts of the police officer. Kidder v. Whitley, 336 Mass. 307, 145 N.E.2d 684 (1957).

In this case the information that someone was displaying a gun, and presumably also the information as to the description of the persons involved, was furnished by an usher at the stadium, an employee of the Baseball Cardinals, but that is all he did. Before any contact was made with appellant all three officers "checked out." There is no evidence that the Baseball Cardinals through any agent gave any instructions to the police officers, and there is no evidence that any improper conduct, which if it occurred was outside the stadium and on a public street, was done at the insistence, direction or...