Globe Indem. Co. v. Victill Corp., 69

• Decision Date: 10 January 1956
• Docket Number: No. 69,69
• Parties: GLOBE INDEMNITY COMPANY, a body corporate, and Louis M. McDermott v. VICTILL CORPORATION, a body corporate.
• Court: Maryland Court of Appeals

Page 573

208 Md. 573

119 A.2d 423

GLOBE INDEMNITY COMPANY, a body corporate, and Louis M. McDermott v. VICTILL CORPORATION, a body corporate.

No. 69.

Court of Appeals of Maryland.

Jan. 10, 1956.

Joseph O. Kaiser and Paul Berman, Baltimore (Paul M. Higinbothom, Sigmund Levin and Theodore B. Berman, Baltimore, on the brief), for appellant.

Franklin G. Allen, Baltimore (Michael P. Crocker and Piper & Marbury, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This action in tort was brought in the Baltimore City Court by Globe Indemnity Company, a body corporate, and Louis M. McDermott against Victill Corporation, a body corporate, and Robert S. Doiel to recover for personal injuries which were inflicted by Doiel in an assault upon McDermott in the Mayfair Hotel on December 22, 1951.

McDermott, who was an employee of the Bethlehem Steel Company, was also employed on week-ends as night clerk in the lobby of the hotel. Doiel, who was 27 years old, gave his address as Iowa, although his wife and child were in Wisconsin. He arrived at the hotel on December 17 with a crew of salesmen employed by Victill Corporation, a body corporate of Illinois engaged in the sale of magazines and reference books.

On Saturday night, December 22, at about 6:30 o'clock, Doiel, whose room was on the second floor of the hotel, called a bellboy to bring him some whiskey and a pitcher of ice. When the bellboy arrived with it, Doiel asked him what was wrong with the switchboard. The bellboy explained that the night clerk was acting as the switchboard operator, and that Saturday was a busy day. At about 7 o'clock Doiel tried to phone a member of the crew on the third floor. As there was no answer, he came down to the lobby to make a complaint. He told McCermott that he was a guest there and wanted service. McDermott said that he was doing the best he could. Thereupon Doiel 'swung' at McDermott, and McDermott ducked behind the desk. One of the women in the lobby rebuked Doiel for his vile language, whereupon he apologized and explained that he was 'just having a little fun for the holidays.'

At about 8:30 o'clock Doiel, having finished dinner, went back to his room. He again called the room on the third floor. When the night clerk informed him that there was no answer, Doiel exclaimed that his call was important, that he wanted to get some information to make up a report to the company. The clerk repeated that he was sorry but that no one answered. Immediately afterwards Doiel rushed into the lobby. McDermott was behind the desk counting pennies. He had an adding machine and a cup of coffee on top of the desk. Doiel took a couple of 'swings' at him, and climbed on top of the desk. McDermott described the assault and battery in these words:

'I reached up, pushed him off, and he landed outside of the counter in the lobby. So I got up * * * and he came swinging again, and to protect myself I took the adding machine and held it in front of me to guard me. So finally he gets up on the counter again and in grabbing the adding machine I guess I spilled the coffee, and also spilled about 200 pennies around, and meantime he gets back up on the counter and finally made it over and I was standing back towards the key rack. * * * He landed me on his back, * * * and while on his back he was working his feet and one foot came up and caught me right in the leg. * * * I felt my leg give way, and I couldn't stand up. * * * So I went down and got in a compartment * * * back under the desk, and I crawled in there, and he kept calling me vile names and gets down and is punching me all over the head and finally banged me by the neck, pulled me out, held me and gave it to me over the eye.'

Within five minutes a policeman arrived on the scene as a porter was cleaning blood spots from the floor. The officer saw that McDermott was limping and had a laceration near the left eye. Doiel came forward and said that he was the man who was responsible. The officer called an ambulance to take McDermott to a hospital and took Doiel to a police station.

In January, 1952, Doiel was found guilty by Judge S. Ralph Warnken in the Criminal Court of Baltimore on the charge of assault and battery, and was sentenced to the Baltimore City Jail for a term of one year. In March, 1952, Judge Warnken received a letter from Victor Yacktman, president of Victill Corporation, recommending that Doiel be paroled. In that letter Yacktman said:

'Bob Doiel worked with us a few months when, because of his leadership, ability and integrity, we promoted him to Field Manager. In this capacity his duties were those of appointing and field-training sales representatives on our combination offers of national magazines and reference books. * * * Bob seemed to be appreciative of his opportunities and kept reinvesting his savings to build up his operation. He was well under way when this regrettable incident occurred. When we got the details of Bob being picked up for assault and battery, we saw to it that he was represented by an attorney. * * *

'We would certainly be willing to reinstate Bob to his position with the company and to do all that we could to assure his success. We will also be glad to co-operate with the authorities by submitting a report of his activities in the event he should be paroled, or if the Parole Board should wish to place him in our custody, in view of his traveling activities, we will likewise be happy to make a periodic report to the Board as to Bob's behavior and attitude.'

Judge Warnken asked the Probation Department in Baltimore to procure information concerning Doiel's record with the corporation. The judge's request was referred to the Probation Department in Chicago. In replying to that Department, Yacktman gave the following report:

'You also asked whether Doiel owed us any money. When he was promoted to manager--prior to his difficulty in Baltimore--we advanced him a few hundred dollars. During the processing of this case, we invested $300.00 additional in liquidating his organization, attorney fees and other miscellaneous items, so that he does owe us $1,100. * * *

'One of our managers was on the scene of action, and we are inclined to feel that Mr. Doiel's penalty was extremely severe. Judging by our experience with him, we believe that he does deserve an opportunity to prove himself, that he will make a good citizen and will restrain himself in every way possible to avoid trouble in the future.'

It appears from the record that McDermott applied to the State Industrial Accident Commission for workmen's compensation, and the Commission found that he had sustained an accidental injury arising out of and in the course of his employment, and awarded him compensation for temporary total disability and permanent partial disability resulting in 55 per cent loss of use of the left leg and disfigurement of the face. Globe Indemnity Company, the employer's insurer, instituted suit under the section of the Workmen's Compensation Act which provides that where injury or death for which compensation is payable under the Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages, and compensation is claimed and awarded or paid, the employer, if he is self-insured, or the insurance company, association or the State Accident Fund, may enforce for their benefit, as the case may be, liability of such other person. Code Supp.1955, art. 101, § 59.

At the close of plaintiffs' testimony in the instant case, the Court directed the jury to render a verdict in favor of Victill Corporation. The jury rendered a verdict in accordance with that instruction, and a verdict in favor of plaintiffs against Doiel for the sum of $18,000.

This appeal was taken by plaintiffs from the judgment entered upon the verdict in favor of Victill Corporation. Plaintiff's did not contend that the corporation authorized or ratified the assault, nor did they contend that the corporation knew that Doiel had a vicious propensity that might incite him to commit an assault. They contended that the jury should have been permitted to decide (1) whether Doiel was a servant of the corporation, and (2) whether he was acting in the course of his employment. They argued that the evidence was legally sufficient to warrant the inference that the assault grew out of Doiel's work as field manager in preparing a report for the corporation.

In the law of agency it is the basic general rule that a master is liable for the acts which his servant does with the actual or apparent authority of the master, or which the servant does within the scope of his employment, or which the master ratifies with the knowledge of all the material facts. This rule is founded upon the maxims of the common law, 'qui facit per alium facit per se,' which indicates the legal identity of the principal and his agent, and 'respondent superior,' which indicates the tort liability of the principal. The law considers that the master holds out his servant as competent and fit to be trusted, and thereby he in effect warrants his servant's fidelity and good conduct in all matters within the scope of his employment. Tome v. Parkersburg Branch R. Co., 39 Md. 36, 70, 71, 17 Am.Rep. 540; Western Maryland R. Co. v. Franklin Bank, 60 Md. 36, 44; New England Mutual Life Insurance Co. v. Swain, 100 Md. 558, 60 A. 469; Jones v. Sherwood Distilling Co., 150 Md. 24, 132 A. 278.

The courts based the master's liability for his servant's torts upon the doctrine of agency. They announced the test of the master's liability to be whether there was authority, express or implied, for doing the tortious act. If the act is done by the servant within the scope of his employment and in the...