Lyon v. Carey
| Decision Date | 03 May 1976 |
| Docket Number | No. 74-1942,74-1942 |
| Citation | 533 F.2d 649,174 U.S.App.D.C. 422 |
| Parties | Corene Antoinette LYON, Appellant, v. Michael CAREY et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Leonard L. Lipshultz, Silver Spring, Md., with whom John Llewellyn Hone and Stanley L. Lipshultz, Silver Spring, Md., were on the brief for appellant.
Joseph S. McCarthy, Washington, D. C., for appellees George's Radio and Television Co. Inc. and Pep Lines Trucking Co.
Before LEVENTHAL and MacKINNON, * Circuit Judges, and McMILLAN, ** United States District Judge for the Western District of North Carolina.
Opinion for the Court filed by District Judge McMILLAN.
Corene Antoinette Lyon, plaintiff, recovered a $33,000.00 verdict in the United States District Court for the District of Columbia before Judge Barrington T. Parker and a jury, against the corporate defendants, George's Radio and Television Company, Inc., and Pep Line Trucking Company, Inc. The suit, for damages, arose out of an assault, including rape, committed with a knife and other weapons upon the plaintiff on May 9, 1972, by Michael Carey, a nineteen-year-old deliveryman for Pep Line Trucking Company, Inc. Three months after the trial, Judge Parker set aside the verdict and rendered judgment for both defendants notwithstanding the verdict. Plaintiff appealed.
As to the defendant Pep Line Trucking Company, Inc., we reverse the district court's judgment and reinstate the verdict. Although the assault was perhaps at the outer bounds of respondeat superior, the case was properly one for the jury. It is within the enterprise liability of vendors like furniture stores and those who deliver for them that deliverymen, endeavoring to serve their masters, are likely to be in situations of friction with customers, and that when they secure entry into a customer's premises by means of a badge of employment, these foreseeable altercations may precipitate violence for which recovery may be had, even though the particular type of violence was not in itself anticipated or foreseeable. Whether the assault in this case was the outgrowth of a job-related controversy or simply a personal adventure of the deliveryman, was a question for the jury. This was the import of the trial judge's instructions. The verdict as to Pep Line should not have been disturbed.
Plaintiff was twenty-five years old, an employee of the D. C. Metropolitan Police Department. She is a twin sister of Irene Yvette Lyon, whose home was in an apartment at 5218 Fifth Street, S. E., in the District of Columbia. Irene Yvette Lyon had bought a mattress and springs for her bed from the defendant George's Radio and Television Company, Inc. The merchandise was to be delivered on May 9, 1972. Irene Lyon had to be at work and the plaintiff, Corene Lyon, had agreed to wait in her sister's apartment to receive the delivery.
A C.O.D. balance of $13.24 was due on the merchandise, and Irene Lyon had left a check for $13.24 to cover that balance. Plaintiff had been requested by her sister to "wait until the mattress and the springs came and to check and make sure they were okay."
Plaintiff, fully clothed, answered the door. Her description of what happened is sufficiently brief and unqualified that it will bear repeating in full. She testified, without objection, as follows:
"A. I went to the door, and I looked in the peephole, and I asked who was there.
The young man told me he was a delivery man from George's. He showed me a receipt, and it said, 'George's.'
He said he couldn't take a COD, so I let him in, and I told him to bring the mattress upstairs and he said, 'No,' that he wasn't going to lug them upstairs, and he wanted the COD first, and I told him I wanted to see the mattress and boxsprings to make sure they were okay, and he said no, he wasn't going to lug them upstairs.
So this went back and forwards and so he was getting angry, and I told him to wait right here while I go get the COD.
I went to the bedroom to get the check, and I picked it up, and I turned around and he was right there.
Plaintiff's pre-trial deposition was a part of the record on appeal, and it shows that Carey raped plaintiff at knife point; that then he chased her all over the apartment with a knife and scissors and cut plaintiff in numerous places on her face and body, beat and otherwise attacked her. All of the physical injury other than the rape occurred after rather than before the rape had been accomplished.
Carey was tried for rape, pleaded guilty, and was sentenced to an active term in prison. Although he was named as a defendant, no one bothered to procure service of process upon him. Because Carey is not even a party, no question is presented on this appeal as to his liability.
Carey was an employee of the defendant Pep Line Trucking Company, Inc. Pep Line had an independent contract arrangement to make deliveries for George's Radio and Television Company, Inc. Carey was not an employee of George's. Carey was on the Lyon apartment premises for the purpose of delivering the mattress and springs which plaintiff's sister had bought from George's. Carey had the delivery receipt, and obtained entrance into the apartment upon the basis that he was making the delivery for George's. Plaintiff did not release the door chain until Carey displayed the George's delivery receipt.
As to the defendant Pep Line Trucking Company, Inc., the evidence will not support a finding that Pep Line knew or should have known that Carey had any proclivity or history more pronounced than that of any other nineteen-year-old boy for assaults, sexual or otherwise which would make Pep Line liable because of knowledge of a dangerous propensity.
The principal question, therefore, is whether the evidence discloses any other basis upon which a jury could reasonably find Pep Line, the employer of Carey, liable for the assault.
Michael Carey was in the employment of the defendant Pep Line as a deliveryman. He was authorized to make the delivery of the mattress and springs plaintiff's sister had bought. He gained access to the apartment only upon a showing of the delivery receipt for the merchandise. His employment contemplated that he visit and enter that particular apartment. Though the apartment was not owned by nor in the control of his employer, it was nevertheless a place he was expected by his employer to enter.
After Carey entered, under the credentials of his employment and the delivery receipt, a dispute arose naturally and immediately between him and the plaintiff about two items of great significance in connection with his job. These items were the request of the plaintiff, the customer's agent, to inspect the mattress and springs before payment (which would require their being brought upstairs before the payment was made), and Carey's insistence on getting cash rather than a check.
The dispute arose out of the very transaction which had brought Carey to the premises, and, according to the plaintiff's evidence, out of the employer's instructions to get cash only before delivery.
On the face of things, Pep Line Trucking Company, Inc. is liable, under two previous decisions of the Court of Appeals for the District of Columbia Circuit. Tarman v. Southard, 92 U.S.App.D.C. 297, 205 F.2d 705 (1953) held a taxi owner liable for damages (including a broken leg) sustained by a customer who had been run over by the taxi in pursuit of a dispute between the driver and the customer about a fare. Dilli v. Johnson, 71 U.S.App.D.C. 139, 107 F.2d 669 (1939), held a restaurant owner liable to a restaurant patron who was beaten with a stick by one Propst, a restaurant employee, after a disagreement over the service. The theory of Dilli, 71 U.S.App.D.C. 139, 107 F.2d at 670, was that:
"It is well established that an employer may be held responsible in tort for assaults committed by an employee while he is acting within the scope of his employment, even though he may act wantonly and contrary to his employer's instructions.
Axman v. Washington Gaslight Co., 38 App.D.C. 150; Davis v. Merrill, 133 Va. 69, 112 S.E. 628; see New York Central & H. R. R. Co. v. United States, 212 U.S. 481, 493, 29 S.Ct. 304, 53 L.Ed. 613.
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