Dempsey v. Walso Bureau, Inc.

• Decision Date: 03 October 1968
• Citation: 431 Pa. 562,246 A.2d 418
• Parties: Thomas E. DEMPSEY, Appellant, v. The WALSO BUREAU, INC.
• Court: Pennsylvania Supreme Court

Page 418

246 A.2d 418

431 Pa. 562

Thomas E. DEMPSEY, Appellant, v. The WALSO BUREAU, INC.

Supreme Court of Pennsylvania.

Oct. 3, 1968.

David Weinstein, Philadelphia, for appellant.

George P. Williams, III, Philadelphia, Schnader, Harrison, Segal & Lewis, Philadelphia, of counsel, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

On April 6, 1965, Thomas Dempsey was employed as a night dispatcher at the bus terminal of Safeway Trails, Trailways Bus Company (Trailways) in Philadelphia. On that date and for some time prior thereto, Trailways had a contract with Walso Bureau, Inc. (Walso), an investigating and security agency, to provide security guards for Trailways' bus terminal. On that date and for some months prior thereto, Walso had in its employ one Kenneth Steinberg as a security guard, his place of duty being the same bus terminal at which Dempsey was a dispatcher.

On April 6, at approximately 2:00 a.m., Steinberg entered the dispatcher's booth at the terminal wherein Dempsey was sitting at his desk. Steinberg pulled Dempsey out of his chair, bent him over backwards and pinioned him, with his knee in Dempsey's back, for several minutes despite Dempsey's protests. Allegedly, by reason of Steinberg's actions, Dempsey sustained severe personal injuries.

To recover damages for his injuries, Dempsey instituted a trespass action in Court of Common Pleas No. 10 of Philadelphia County against Walso. Upon issue joined, the matter was heard before the court without a jury and, after hearing, the court dismissed Dempsey's complaint and directed the entry of a judgment in favor of Walso and against Dempsey. Upon dismissal of exceptions to this order by the court en banc, judgment was entered and the instant appeal was taken.

At the outset, it must be noted that Dempsey does not predicate liability on Walso's part under the doctrine of Respondeat superior because it is obvious and, in fact, conceded that Steinberg's actions were outside the scope of his employmemt. On the contrary, Dempsey's theory of liability is that, by reason of Steinberg's conduct on various occasions prior to April 6, Walso knew or, by the exercise of reasonable care, should have known of Steinberg's dangerous propensity for violence and should not have continued him in its employ and, moreover, Walso, before hiring Steinberg, did not exercise reasonable care in its selection and should not have hired a person inclined to violence.

The reasoning of the court below was that the evidence of record as to Steinberg's prior conduct revealed simply 'horseplay' rather than a propensity to violence and that Walso did not know or have reason to know of Steinberg's actions prior to April 6; furthermore, there was no evidence of any lack of care in investigating Steinberg's background prior to his employment and nothing to indicate that Walso was negligent in hiring him.

The questions raised on this appeal, although seven in number, actually fall into two categories: first, whether the evidence of record was sufficient to establish liability on Walso's part, and, second, whether in its rejection of certain proffered evidence, the court committed error.

Dempsey relies upon Restatement, Torts, 2d, Section 317, to establish liability for Steinberg's actions after he had been hired. That Section provides:

'Duty of Master to Control Conduct of Servant

'A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.'

In determining whether the requirements of Section 317 have been satisfied by the evidence of record, we, initially, reiterate the concession that Steinberg, at the time of the assault, was 'acting outside the scope of his employment' ¹ and note the undisputed fact that Steinberg was upon premises which he was privileged to enter as Walso's employee, the latter satisfying Section 317(a), (i). Our inquiry, therefore, must focus on whether the evidence of record satisfies the provisions of Section 317(b)(ii) in proving that Walso Knew or Should have known of the necessity and opportunity of exercising control over Steinberg.

Comment c. to Section 317 provides, inter alia: 'Retention in employmemt of servants known to misconduct themselves. There may be circumstances in which the only effective control which the master can exercise over the conduct of his servant is to discharge the servant. ² Therefore the master may subject himself to liability under the rule stated in this Section by retaining in his employment servants who, to his knowledge, are In the hobit of misconducting themselves in a manner dangerous to others. This is true although he has without success made every effort to prevent their misconduct by the exercise of his authority as master.' (Emphasis supplied.)

The common law in this Commonwealth prior to the promulgation of Section 317, gave recognition to the principles later embodied in Section 317. In Frazier v. Pennsylvania R. R., 38 Pa. 104 (1858), a brakeman was injured in a train collision and, in the ensuing trespass action against the railroad, it was averred that the collision was caused by the carelessness of a fellow employee,--the conductor--and that the railroad was liable because it had, knowingly or negligently, employed a conductor who was careless. This Court approved a jury instruction which stated that it was the railroad's duty to employ careful and prudent conductors and, if the railroad employed a person as conductor whom it Knew to be careless, the fact that the railroad employed such a conductor or continued such conductor in employmemt after learning of his carelessness would constitute negligence on the railroad's part. In Rosenstiel v. Pittsburgh Railways Co., 230 Pa. 273, 79 A. 556, 33 L.R.A., N.S., 751 (1911), a lineman employed by the railways company, engaged in repairing an overhead trolley wire, was killed when a motorman, a fellow employee, ran his car into the ladder upon which the lineman was standing. The theory upon which it was sought to fasten liability on the railways company was that the motorman, a three-year employee, was incompetent and careless and that such incompetency and carelessness was known or, under the circumstances, should have been known to the railways company if reasonable and ordinary care had been exercise. While we reversed a verdict against the company because of the introduction into evidence of certain prejudicial and incompetent testimony, we approved the charge of the trial court that it was encumbent on the part of the plaintiff not only to prove incompetency and carelessness on the part of the motorman prior to the accident but also to prove that the railways company knew or had reason to know of such incompetency or carelessness on the part of the motorman. See also: Huntingdon & Broad Top Mt. R.R. & Coal Co. v. Decker, 82 Pa. 119, 124 (1876); Snodgrass v. Carnegie Steel Co., 173 Pa. 228, 232, 33 A. 1104 (1896).

In Najera v. Southern Pacific Company, 191 Cal.App.2d 634, 13 Cal.Rptr. 146 (1961), that Court well stated the basic rule: 'The cases hold that the knowing Employment of a dangerous employee who inflicts injury upon a fellow employee constitutes a common law tort on the part of the employer. Indeed the employer railroad at common law owed a duty to its employees to 'use reasonable care * * * in the selection of competent fellow servants and in the retention in his service of none but those who are. * * *' (Citing authorities.) Moreover, 'there could be no difference whether the injury result from negligence in doing the master's work, or from an assault made by a dangerous, drunken and desperate employee, if his requtation was such that the master might reasonably have foreseen such consequences.' (citing an authority).' In that case, the employee of the railroad, who was known to be quarrelsome and quick-tempered as well as a 'drinking man', assaulted a fellow employee. The court considered two questions: (1) whether the railroad was negligent in 'meploying and retaining' the assaulter, and (2) whether the acts of the employee could be imputed to the railroad. Denying liability on the doctrine of Respondeat superior, the court submitted the case to the jury on the theory of the employer's negligent hiring and retention of the employee. Other authorities, including the Restatements of Agency and Torts, recognize the employer's duty as to the proper selection of his employees. Section 213 of Agency, Second, states: 'A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: * * * (b) in the employment of improper persons. * * *' The Comment under that section declares further: 'An agent, although otherwise competent, may be incompetent because of his reckless or vicious disposition, and, if a principal, without exercising due care in...