Marcus v. Gimbel Bros.
| Decision Date | 10 April 1911 |
| Docket Number | 177 |
| Citation | 231 Pa. 200,80 A. 75 |
| Parties | Marcus, Appellant, v. Gimbel Brothers, Inc |
| Court | Pennsylvania Supreme Court |
Argued January 9, 1911
Appeal, No. 177, Jan. T., 1910, by plaintiffs, from order of C.P. No. 5, Phila. Co., Dec. Term, 1906, No. 3,019, refusing to take off nonsuit in case of Isaac Marcus and Claire Marcus, his wife, v. Gimbel Brothers, Incorporated. Reversed.
Trespass to recover damages for personal injuries. Before STAAKE, J.
The facts appear by the opinion of the Supreme Court.
At the trial when Mrs. Marcus was on the stand, the following offer was made:
Mr Powell: I am going to prove that Mr. Hoffman was sent by Mr Barrett with instructions to get the silk, and that he was to use force, if necessary, to do it, and that he so stated to this witness over the 'phone prior to sending Hoffman to her house.
Mr. Hepburn: That is objected to.
Mr. Powell: I intend to follow that up by showing that Mr. Barrett called the witness up -- that she asked him who it was and he said it was Mr. Barrett and she recognized his voice over the 'phone, and he then said to her, "You have got this silk by some false pretense," and said she would have to give it back and said, "Don't dare cut it," and he was going to send Mr. Hoffman to come up for it and use force if necessary. Then to follow that up by showing that Mr. Hoffman came there and stated that he was told to use force and did use force to get this silk.
The Court: For the reasons stated, I sustain the objection to the offer.
The court granted the plaintiff an exception to the above ruling. [1]
Mr. Powell: I offer to prove that later on, on the twenty-fourth, George Hoffman called to obtain this eighteen yards of silk, and that in getting it he committed an assault upon this witness.
Objected to.
The Court: I cannot pass upon what you may do, but only upon what you are asking me to do at this time. If you propose to prove your case in some other way I will be very glad to pass upon each offer as it is made but so far as the present offer to prove the agency of Hoffman by his own declaration made to the witness is concerned, I shall have to overrule that offer.
The court grants the plaintiff an exception to the above ruling. [2, 3]
Mr. Powell: I now make the offer to prove by this witness the allegations contained in our statement of claim filed to the effect that there was an assault committed on her by one of the employees of Gimbel Brothers, one George Hoffman, who was sent to her house to secure certain silk -- that in the securing of that silk he committed an assault -- and then I intend to follow that up by showing the nature of the assault, the injuries sustained by the plaintiff, and the loss sustained by her and her husband.
Mr. Hepburn: I object until it is shown that Hoffman was sent to the house of the plaintiff.
The Court: That Hoffman was sent to the house of the plaintiff or her husband -- that is to the residence of Mr. and Mrs. Marcus, by some one authorized to send him for that purpose?
Mr. Hepburn: Yes.
The Court: And that must necessarily precede any effort to hold the defendant company responsible for what Hoffman may have done.
Mr. Powell: I make the offer at this time, because if your honor overrules my offer, that is my case.
The Court: I sustain the objection for the reasons which have actuated me in sustaining the prior objections. The court granted plaintiff an exception to the above ruling. [4]
The court entered a compulsory nonsuit which it subsequently refused to take off.
Error assigned was refusal to take off nonsuit.
Assignments of error sustained, judgment reversed and a venire facias de novo awarded.
Theodore F. Jenkins, with him Humbert B. Powell, for appellant. -- While not liable for the willful and independent trespass of his servant a master is responsible civilly for the manner in which the servant does the work that he is employed to do, and it is the character of the employment when an act is done, not the private instructions to the servant, by which the master's liability is to be determined: McClung v. Dearborne, 134 Pa. 396; Dick v. Cooper, 24 Pa. 217; Stafford v. Henry, 51 Pa. 514; Brennan v. Merchant & Co., 205 Pa. 258; Guinney v. Hand, 153 Pa. 404; Atherolt v. Electric Motor Co., 27 Pa.Super. 141; Whaley v. Citizens' National Bank, 28 Pa.Super. 531.
The question whether a servant was acting within the scope of his employment when he committed a negligent act is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404; Moon v. Matthews, 227 Pa. 488.
W. Horace Hepburn, for appellee. -- The alleged statements of Barrett over the 'phone, as to sending Hoffman to take the goods by force, if necessary were not admissible to bind appellee: Hays & Wick v. Lynn, 7 Watts, 524; B. & O. Employees' Relief Assn. v. Post, 122 Pa. 579; American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529; American Underwriters' Assn. v. George, 97 Pa. 238; Union Refining & Storage Co. v. Bushnell, 88 Pa. 89; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449; Lombard, etc., Pass. Ry. Co. v. Christian, 124 Pa. 114; Shannon v. Castner, 21 Pa.Super. 294.
Where the act of the servant does not fairly tend to effectuate the discharge of the duty for which he is employed, the master is not liable: Guille v. Campbell, 200 Pa. 119; Towanda Coal Co. v. Heeman, 86 Pa. 418; Berryman v. Pennsylvania R.R. Co., 228 Pa. 621; Mali v. Lord, 39 N.Y. 381; Thames Steamboat Co. v. Houstonic R.R. Co., 24 Conn. 40; Paulton v. Keith, 23 Rhode Island, 164 (49 A. Repr. 635); Investment Co. v. Eldridge, 175 Pa. 287.
The offer of the appellants to prove that Hoffman called at the house of appellants to secure the silk, and that in attempting to secure it he committed an assault upon the appellant, Claire Marcus, was not admissible, without proof that Hoffman was sent to the house of appellants by the appellee, or some one in its behalf having authority to act for the defendant: Towanda Coal Co. v. Heeman, 86 Pa. 418; Guille v. Campbell, 200 Pa. 119; Feneran v. Singer Mfg. Co., 20 A.D. 574 (47 N.Y.S. 284); McGrath v. Michaels, 80 A.D. 458 (81 N.Y.S. 109); Lotz v. Hanlon, 217 Pa. 339; Shay v. American Iron & Steel Co., 218 Pa. 172; Berryman v. Pennsylvania R.R. Co., 228 Pa. 621.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
This is an appeal from the judgment of nonsuit directed to be entered by the learned court below and from refusal upon motion made to set the same aside. The suit was brought to recover damages for injuries sustained by reason of an alleged assault and battery upon the wife of appellant under the following circumstances. His wife was engaged in the business of dressmaking and in pursuit of her business had purchased some silk from the appellee corporation. The silk proved to be unsatisfactory and Mrs. Marcus, the wife, went to the department store of appellee where she saw the president and made her complaint to him. He referred her to the superintendent, saying, "My child, I am very sorry, only you have to go in to the superintendent and whatever he says goes." She testified that the name of the superintendent mentioned was Mr. Barrett and that she immediately waited upon him as directed by the president. Mr. Barrett called in Mr. Frutchey who had charge of the silk department and the question of the defective silk was discussed between them, with the result that it was agreed to furnish eighteen yards of silk from which should be taken enough to supply the place of that which was defective and about which complaint was made. This arrangement was carried out. The offer was made to prove by Mrs. Marcus that on the next day Mr. Barrett telephoned her that she had misrepresented the facts to him and that George Hoffman, an employee of the appellee company, would be sent for the silk, which would be taken by force if necessary. Sometime thereafter, on...
To continue reading
Request your trial