Kendall v. Gore Properties
| Decision Date | 14 June 1956 |
| Docket Number | No. 12818.,12818. |
| Parties | Mabel D. KENDALL, Ancillary Administratrix of the Estate of Codie A. Whitman, deceased, Appellant, v. GORE PROPERTIES, Inc., a Corporation, American Security and Trust Company, a Corporation, and William Freeney Hickey, Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
COPYRIGHT MATERIAL OMITTED
Mr. Arthur J. Hilland, Washington, D. C., with whom Mr. Thomas N. Kindness, Washington, D. C., was on the brief, for appellant.
Mr. John L. Laskey, Washington, D. C., with whom Mr. Charles W. Arth, Washington, D. C., was on the brief, for appellees.
Messrs. Leo A. Rover, U. S. Atty., at the time of argument, Lewis Carroll and Nathan J. Paulson, Asst. U. S. Attys., filed a brief on behalf of the United States of America, as amici curiae, urging affirmance.
Before FAHY, DANAHER and BASTIAN, Circuit Judges.
Appellant is administratrix of the Estate of Miss Codie A. Whitman, deceased, on account of whose wrongful death this action had been brought. Decedent, on July 12, 1952, then 39 years of age, was strangled to death with a painter's towel in apartment 201 of which she was a tenant in the Ritz Apartments at 1631 Euclid Street, N. W., District of Columbia. Appellee Gore Properties, Inc., was the owner of the Ritz, appellee William F. Hickey was resident manager, and appellee American Security and Trust Company was rental agent. Perpetrator of the murder was one Harry Clifford Porter who had been engaged by Hickey to paint the interior of Miss Whitman's apartment. At the close of appellant's case, the trial judge directed a verdict in favor of all appellees. We find no basis whatever upon which American Security and Trust Company can be said to be liable, for its activities were limited solely to the issuance of leases, collection of rents and payment of maintenance charges when properly vouchered by Hickey. Accordingly, the appellees hereinafter mentioned are the corporate owner and resident manager Hickey. The principal question presented may be stated as follows:
"Did the Court err in directing a verdict for the appellees (defendants) at the close of appellant\'s evidence where the evidence showed (1) that the appellant\'s decedent, Codie A. Whitman, occupied as a tenant an apartment in an apartment house owned by one of the appellees and managed by the other two appellees, (2) that on Saturday afternoon, July 12, 1952, in her apartment, Miss Whitman was strangled and choked to death by an agent of the appellees, Harry Clifford Porter, (3) that on Friday night, July 11, 1952, immediately upon being employed by the appellees, Porter had been assigned by them to Miss Whitman\'s apartment to paint the interior of it, (4) that when the appellees employed Porter, they did not know him, made no investigation of him, obtained no references from him, and without any previous experience with him, assigned him to paint the interior of the apartment occupied by Miss Whitman, who was known by the appellees to be a single girl living alone and unprotected in her apartment, (5) that the appellees did not in any manner supervise or control Porter while he was painting Miss Whitman\'s apartment and gave him a key and unrestricted access to her and her apartment, and (6) that Porter was a person of unsound mind, dangerous and irresponsible and was adjudicated so and committed to the ward for insane criminals in St. Elizabeth\'s Hospital?"
Appellant took the pretrial deposition of Hickey, read it at the trial, and also called Hickey as an adverse witness. It was thus developed that on one or two occasions, perhaps two weeks before the murder, Hickey saw Porter outside an Air Force building near the National Airport wearing fatigue clothes such as are worn by enlisted men in the Air Force. Porter was cleaning brushes at the time. Although Hickey did not know Porter and knew nothing about him, he asked Porter if he would like to make some extra money. When Porter replied affirmatively Hickey invited him to call at the apartment house to give him a price for painting the interiors of various apartments. On Wednesday evening, July 9, or the following evening, Porter and Hickey agreed upon a price, and Hickey put Porter to work on the evening of Friday, July 11, painting Miss Whitman's apartment. Appellees knew Miss Whitman was single, living alone and unprotected in her apartment. At the time Hickey made arrangements with Porter he also employed through Porter two other men to do painting. Hickey knew none of them, had no knowledge of where they had worked, what kind of work they had done, by whom they had been employed, had no references concerning them, and made no investigation of any of them. On the day Miss Whitman met her death there had been employed at the apartment, a hall man, one Keyes, who some six months to twelve months earlier had been engaged by Hickey. Hickey had made an investigation of Keyes before hiring him, discovered he had been convicted of robbery and had recently been released from the penitentiary and was on parole. When Hickey first talked to Porter about taking the painting job the evidence runs:
Under these circumstances, between 6 and 7 P.M. on the evening of Friday, July 11, Hickey, Porter and Miss Whitman went to her apartment. Hickey started Porter painting in the kitchen, could not say how long he remained there but Hickey left. He had no recollection of returning to Miss Whitman's apartment that evening, did not know when Porter stopped working that night, did not see Miss Whitman again that evening, and had no recollection of seeing Porter leave. The following morning Hickey took Porter again to Miss Whitman's apartment around 8 A.M. He looked at the painting which had been done in the kitchen, did not see Miss Whitman in the apartment and Hickey left. Although he saw Miss Whitman downstairs in the lobby around 3:30 P.M. on the afternoon of July 12, 1952, Hickey did not remember about going to the apartment during the day, did not see Porter leave the building at any time that day, had no knowledge when Porter quit working on Saturday, did not know whether anyone else was working in the apartment with Porter, but certainly paid no one else for doing so, and did not at any time on Saturday send anyone to the apartment to see Porter. Hickey next saw Porter in the basement of the apartment Sunday around mid-day, when he again admitted Porter to Miss Whitman's apartment. Although Hickey visited the apartment two or three or four times Sunday afternoon, and at no time saw Miss Whitman there, he made no inquiry as to her whereabouts. Although he testified in his deposition he had given Porter no keys to Miss Whitman's apartment, he was examined by appellant's counsel concerning his testimony at the coroner's inquest on July 15, 1952, as follows:
When ruling on appellees' motion for directed verdict the trial judge said:
"Unless the employer is put upon notice by some fact which would cause him to make an inquiry as to the mentality, mental health or habits of the proposed employee, then, in the Court\'s opinion, no burden rests upon a proposed employer to make an examination as to such phases of the proposed employee\'s life, habits and activities."
After further recapitulation of various aspects of the problem, the trial judge said:
"Now, the question arises under that state of facts, standing alone, is it incumbent upon the defendant in order to discharge his obligation, to free himself from negligence, to make an independent inquiry as to the sanity of the individual who later is shown to have been a person of unsound mind? * * *" (Emphasis added.)
It is true that appellant's complaint had alleged that Porter "was then and there a person of unsound mind and dangerous and irresponsible," but the question was not as narrowly to be stated as the trial judge put it. It was not merely that the defendants might be called upon "to make an independent inquiry as to the sanity of the individual who later is shown to have been a person of unsound mind. * * *," supra. The allegation upon which the plaintiff's case must rest, taken as a whole, charges that the appellees negligently employed Porter, that they negligently provided him with a key to Miss Whitman's apartment, and that they "negligently allowed him to go in and out of and remain in the said apartment without proper supervision or proper control." As is to be deduced from the evidence previously summarized, it was not simply a matter of whether or not Porter was insane. It was a matter of whether or not, in the absence of any investigation whatever, any man, Porter or anyone else, sane or insane, should have been employed as here, or without any supervision whatever, or the attempted exercise of any...
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