Janof v. Newsom

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: MARTIN, Justice, and HITZ and GRONER, Associate Justices
• Citation: Janof v. Newsom, 53 F.2d 149, 60 App.D.C. 291 (D.C. Cir. 1931)
• Decision Date: 29 June 1931
• Docket Number: No. 5165.,5165.
• Parties: JANOF v. NEWSOM.

60 App. DC 291, 53 F.2d 149 (1931)

JANOF v. NEWSOM.

No. 5165.

Court of Appeals of District of Columbia.

Argued June 3, 1931.

Decided June 29, 1931.

Petition for Rehearing Denied October 31, 1931.

Leon Pretzfelder, of Washington, D. C., and Joseph D. Milenky, of Detroit, Mich., for plaintiff in error.

Charles H. Houston, of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices.

HITZ, Associate Justice.

This case comes here by writ of error to the Municipal Court of the District of Columbia to review a judgment for defendant in an action for negligence.

The plaintiff below, plaintiff in error here, is a housewife; the defendant is an employment agent, licensed and bonded under an act of Congress regulating employment agencies in the District of Columbia. The plaintiff applied by telephone to the defendant for a maid servant. The defendant sent one to the plaintiff's house, who disappeared the following morning contemporaneously with certain jewelry, valued at approximately $1,000, which the plaintiff alleges was stolen by the servant.

The declaration sets up the statutory duties laid upon employment agents; negligent failure to perform them by the defendant; and loss resulting therefrom to the plaintiff.

The pleas assert no duty owing to the plaintiff because no fee was paid; full performance of the duty; contributory negligence; and assumption of risk by the plaintiff.

By stipulation, the case was tried to the court without a jury, and resulted in a judgment for the defendant, with costs. This judgment is attacked here as being unsupported in law, in fact, or in evidence.

The statute involved is the Employment Agency Act of June 19, 1906, c. 3438, 34 Stat. 304, D. C. Code 1929, T. 20, Part 9, §§ 941-951. This statute by prohibiting unlicensed employment agents gives a monopoly to its licensees, and requires written application to the Commissioners of the District of Columbia for such license, and, when issued, requires the licensee to keep certain registers and records; authorizes him to charge certain fees; and provides for his giving a bond, on which the surety is secondarily liable to any person aggrieved by the misconduct of such licensed agent, in addition to the public penalties provided for agents violating the act.

We regard the plaintiff's claim as resting mainly upon the defendant's alleged negligence in respect of the statutory duty to record the servant's address and to investigate her references. And there is evidence in the record tending to show that, if either of these requirements of the statute had been performed in the spirit of the statute, this servant would not have been sent to "a private family or employed in a fiduciary capacity." For the detective officer detailed to investigate the case testified that he recognized the description of the servant as that of a certain woman in the habit of procuring a servant's position for purposes of theft; that the Detective Bureau had six or seven such complaints against her; that she was under indictment; but apparently they had not found her at the time of the trial in December, 1929, although this theft was reported immediately after its occurrence.

The language of the statute touching these points is that it shall be the duty of the licensed agent to record and preserve "the name and address of the applicant to whom employment is promised or offered, the amount of the fee received, and, whenever possible, the names and addresses of former employers or persons to whom such applicant is known."

And again: "It shall be the duty of every licensed person, whenever possible, to communicate orally or in writing with at least one of the persons mentioned as references for every applicant for work in private families or employed in a fiduciary capacity, and the result of such investigation shall be kept on file in such agency: Provided, That if the applicant for help voluntarily waives in writing such investigation of references by the licensed person, failure on the part of the licensed person to make such investigation shall not be deemed a violation" of the act.

The plaintiff testified that, when she called the defendant's office for a servant on March 21, 1928, the defendant told her that she had a woman in the office whom she recommended, and whom she sent; that upon her arrival she asked for references, and, the servant having none, plaintiff accepted her because sent and recommended by the defendant.

The next morning the servant and the jewelry disappeared; the plaintiff notified the police, and went with an officer to the address given her by the servant, where they were told the servant was unknown. This policeman and a detective officer testified that they verified the address given the plaintiff by the servant from the records of the defendant, that those records contained no other information relating to any investigation of the servant or her references, and that the defendant told them she could give no information about her, except the address which was furnished her by the servant.

The defendant testified that in February, 1927, the servant was in her office when a Major Humphrey came there for a servant, and took this one with him to Quantico; that a month later he casually dropped into her office, and volunteered the...