Draper v. Olivere Paving & Const. Co.

• Court: Supreme Court of Delaware
• Writing for the Court: SOUTHERLAND, C. J., WOLCOTT, J., and TERRY; WOLCOTT
• Citation: Draper v. Olivere Paving & Const. Co., 181 A.2d 565, 54 Del. 433 (Del. 1962)
• Decision Date: 15 May 1962
• Parties: , 54 Del. 433 Norman DRAPER and Alva R. Draper, his wife, Plaintiffs Below-Appellants, v. OLIVERE PAVING & CONSTRUCTION CO., a corporation of the State of Delaware, and Willie M. Redden, Defendant Below-Appellee, and Defendant Below.

Page 565

181 A.2d 565

4 Storey 433, 54 Del. 433

Norman DRAPER and Alva R. Draper, his wife, Plaintiffs Below-Appellants, v. OLIVERE PAVING & CONSTRUCTION CO., a corporation of the State of Delaware, and Willie M. Redden, Defendant Below-Appellee, and Defendant Below.

Supreme Court of Delaware.

May 15, 1962.

An appeal from the Superior Court in and for New Castle county.

Courtney H. Cummings, Jr., of Killoran & Van Brunt, of Wilmington, for appellants.

Ernest S. Wilson, Jr., and William T. Lynam, III, of Wilmington, for appellee.

SOUTHERLAND, C. J., WOLCOTT, J., and TERRY, President Judge, sitting.

WOLCOTT, Justice.

This is an appeal from the entry of summary judgment in favor of the defendant Olivere Paving & Construction Co. (hereafter Olivere). The action grew out of an assault and battery committed upon the plaintiff, Norman Draper (hereafter Norman), by the defendant, Willie M. Redden (hereafter Willie), at the time an employee of Olivere. The plaintiff, Alva R. Draper, wife of Norman, sues for loss of consortium.

Plaintiffs advance four theories in support of their action, viz.:

(1) That the assault and battery by Willie against Norman occurred within the general scope of Willie's employment;

(2) That since Olivere contracted with the City of Wilmington to reconstruct a public street, it, by reason of that fact, owed the affirmative duties to exercise a high degree of care and take all necessary precautions for the safety of the public, and that as a result of Olivere's breach of these duties, Norman suffered injuries;

(3) That Olivere was negligent in hiring and keeping Willie in its employment because of his vicious and malicious nature, which was known to Olivere;

(4) That Olivere, with full knowledge, ratified Willie's assault and battery upon Norman as being within the general scope of Willie's employment.

We state the facts. Such statement must of necessity be in the light most favorable to plaintiffs' contentions since summary judgment was entered against them.

Olivere entered into a contract with the City of Wilmington for the reconstruction of a city street, North Park Drive from Market Street west to the plant of the Container Corporation. This length of North Park Drive is intersected at approximately its middle point by Van Buren Street. The contract required Olivere to provide safe vehicular travel in at least one traffic lane at all times during construction. Olivere was further required by the contract to erect and maintain sufficient barricades, warnings, signs, etc., and to provide watchmen for the protection of the public. In the event it was necessary to close the street to traffic, Olivere was required to erect barricades with warning signs, and to erect and maintain sufficient detour signs around the closed-off street.

Olivere commenced the reconstruction of the street. Apparently, pursuant to the contract, Olivere completed first the reconstruction of North Park Drive westerly from Van Buren Street to the plant of the Container Corporation. Reconstruction of the section lying easterly between Van Buren Street and Market Street was then commenced. Due to the physical nature of this section it proved impracticable to keep one lane of traffic open through it during construction. This section was, accordingly, closed to traffic. Barricades and a detour sign were placed, closing off this section of North Park Drive at its intersection with Van Buren Street. In addition, on occasion, a member of the Wilmington Park Police was on duty at the barricade to direct traffic. However, at the time of the incident with which we are involved, no Park Policeman was on duty.

In the afternoon of September 10, 1959, Norman drove his car, followed by a car driven by his father, Lloyd, accompanied by Norman's son, across Van Buren Street Bridge intending to turn right and proceed easterly on North Park Drive. At this time the barricades and a detour sign had been pushed aside to the left and completely off the repaved surface of North Park Drive. (This fact is in dispute but we accept the plaintiffs' version as did the trial judge.) At this time there was no watchman at this intersection.

Norman, followed by Lloyd, proceeded easterly on North Park Drive to a point under Washington Street Bridge, at which point Willie, then in the employ of Olivere, was operating a road grader on the shoulder of the road. He waved them down since North Park Drive was impassable to traffic from that point on.

Willie's profane remarks to Norman and his father were to the effect that, like everyone else, the Drapers ignored signs and barricades. Thereupon, Norman and Lloyd started to back their cars to turn around, accompanied by remarks from Willie concerning the stupidity of people in ignoring barricades. Lloyd experienced difficulty in backing and got out of his car to see if he had room enough to turn around. Wilie's tirade continued and Lloyd called to him and said to come on back and he would show him that the barricades had been pushed aside. At this, or possibly when Lloyd got out of his car, Willie left the grader and walked rapidly toward Lloyd, telling him to 'get back in your damned car or I will push your face in.' Thereupon, there was an exchange of unpleasantries between Lloyd and Willie.

Norman got out of his car, whereupon Willie changed direction and came toward him. An exchange of cursing and obscenity then took place between Norman and Willie, including slurring references to their respective racial characteristics. The whole fracas resulted in Willie administering a grievous slashing across the neck to Norman with a corkscrew he took from his pocket. It is not clear whether or not blows were exchanged between them, or as to which one struck the first blow In any event, Norman was seriously injured and was taken immediately to a hospital.

It seems apparent that this entire argument and violence took place within a very short space of time. Lloyd estimated that 'it wasn't over a minute' from the time Willie got off the grader until he slashed Norman. Again, he described the time duration by snapping his fingers.

Willie was thereafter arrested for assault and battery and sentenced to six months imprisonment. Olivere posted bail for him and one of its officials was instrumental in his release on probation. Willie served no time in jail but immediately returned to his job with Olivere for which he had worked from 1944 until his death subsequent to the filing of this lawsuit, and the taking of his deposition.

Prior to coming to Delaware in 1940, Willie was a resident of Georgia where, in 1933, he was convicted of the crime of murder, and sentenced to life imprisonment. He was pardoned in 1939. He came to Delaware shortly thereafter. After settling in Delaware, Willie got in trouble with one Hall, a fellow employee. The difficulty apparently arose out of a domestic situation involving Willie's wife, and involved an attempted assault by Willie on Hall with a knife. It seems clear that Olivere knew nothing of Willie's conviction of murder in Georgia, but it may have known of the subsequent attempted assault on Hall. In any event, Olivere considered Willie a 'key man' on the job and was anxious for him to continue in its employ.

There seems to be no doubt that, while it was not the particular job of Willie to direct traffic, any employee of Olivere was authorized and expected to direct traffic in a situation such as the one here at bar.

Upon these facts and upon the assumptions that there were in fact no barricades at the intersection of Van Buren Street and North Park Drive, and that Willie was the aggressor in the described assault and battery, the trial judge held that the assault did not take place within the scope of Willie's employment and, accordingly, entered summary judgment in favor of Olivere, leaving the estate of Willie as the sole defendant.

Initially, we note one matter which is not raised in this appeal. Alva Draper, the wife of Norman, sues in this action for loss of her husband's consortium. On the authority of Yonner v. Adams, Del.Super., 167 A.2d 717, a recent decision of the Superior Court, the trial judge held that a wife is entitled to recover for loss of consortium, but that such right of action was dependent upon the husband's right to maintain an action for personal injuries. The correctness of the Yonner decision is not before us and, consequently, this opinion is not to be read as either an implied approval or disapproval of that decision.

We consider first the argument of Norman to the effect that Olivere assumed responsibility for Willie's tort by ratification. The argument is that, in arranging for bail and probation, and taking him back in his employ, Olivere ratified his act. The trial judge held that the record failed to support this theory. With this holding, we agree. The furnishing of bail and assistance to obtain probation do not, of themselves, establish acquiescence in and ratification of the criminal acts of an employee to such an extent as to subject the employer to civil liability. We think such acts exhibit solely the desire of an employer to get a highly-trained workman back on a job then in progress.

Secondly, Norman argues that Olivere was negligent in hiring Willie knowing him to have a vicious and malicious nature. The record wholly fails to support the charge. It is not clear that Willie was a principal in the murder for which he was convicted in Georgia. His own explanation was that he had loaned to another the gun which was used as the murder weapon, and his subsequent pardon would seem to bear this out. Furthermore, there is no proof whatsoever that Olivere ever knew of this past conviction. Bearing upon Olivere's knowledge, also, is the important fact that Willie, for seventeen years, had been a faithful, able workman who, for that period, had stayed out of trouble. We agree with the trial judge that the charge is...