Meyers v. National Detective Agency, Inc.

• Decision Date: 28 September 1971
• Docket Number: No. 5725.,5725.
• Citation: 281 A.2d 435
• Parties: Tedson Jay MEYERS, Appellant, v. NATIONAL DETECTIVE AGENCY, INC., Appellee.
• Court: D.C. Court of Appeals

281 A.2d 435

Tedson Jay MEYERS, Appellant, v. NATIONAL DETECTIVE AGENCY, INC., Appellee.

No. 5725.

District of Columbia Court of Appeals.

Argued June 22, 1971.

Decided September 28, 1971.

Hal Witt, Washington, D. C., for appellant.

Leo A. Roth, Jr., Washington, D. C., with whom Denver H. Graham, Washington, D. C., was on the brief, for appellee.

Before KELLY, KERN and NEBEKER, Associate Judges.^**

KELLY, Associate Judge:

Upon returning home with his wife¹ at approximately 10:30 p. m. on the evening of January 6, 1966, appellant parked his car in the 1200 block of 28th Street, N.W. An interest in dogs and obedience training led them to approach a white station wagon parked directly across the street from their home to speak to the driver, one of appellee's uniformed security patrol guards, about the German shepherd dog he had in the rear of the wagon. The station wagon bore the markings of the National Detective Agency, Inc., K-9 Division. Appellant and his wife conversed with the guard, one Thomas Picard, from five to ten minutes during which time the dog on two occasions became wildly excited; once when Picard told appellant to put his hand against the car window and see what would happen, and again when some pedestrians passed close to car window. Each time the guard calmed the dog and continued the conversation.

Both appellant and his wife had seen the station wagon in the area regularly and, in addition to the discussion of obedience training, asked Picard questions about how often and at what times he was in the area checking their neighbor's house. Ultimately, Picard, saying "Let me show you how well trained he is", opened the car door and pulled the somewhat reluctant dog from the back to the front seat. The dog then jumped out of the car and bit appellant on the arm.

Pertinent testimony in defense was that appellee had an unwritten company regulation, explained to all employees, that the use of dogs on security patrols was not authorized. Picard, in particular, had been so informed sometime prior to the accident in question after other security guards reported that he had been taking his own dog with him on patrol. Although the station wagon driven by Picard that night had been painted with the legend "K-9 Division" for promotional purposes when the company anticipated activating such a division, that plan had been abandoned because appellee could not find suitable dog handlers.

Picard dislocated his shoulder at the time of the accident when he fell while attempting to restrain the dog. He never returned to work and has since moved from the area. He was not available to testify at trial.²

At the close of all the evidence, the court directed a verdict for appellee on the ground that as a matter of law Picard's action in attempting to demonstrate the extent of the dog's training to persons with whom he was engaged in casual conversation was outside the scope of his employment and not in furtherance of his employer's business.³

We conclude in light of the evidence of record that appellant was entitled to have his case go to the jury; hence it was error to grant the motion for directed verdict. In reaching our conclusion we of course construe the evidence most favorably to appellant, giving him the benefit of every legitimate inference to be drawn therefrom. Great A & P Tea Co. v. Aveilhe, D.C.Mun.App., 116 A.2d 162 (1955).

A master is liable for the negligence of his servant if at the time of the negligent act the latter is acting within the scope of his employment, and this liability applies even in instances where the servant, while disobeying his master's orders injures a third party. Schweinhaut v. Flaherty, 60 App.D.C. 151, 49 F.2d 533 cert. denied, 51 S.Ct. 656, 283 U.S. 864, 75 L.Ed. 1468 (1931). Cf. Horton v. Jones, 208 Miss. 257, 44 So.2d 397, 15 A.L.R.2d 824 (1950). On the other hand, an act committed by the servant solely for his own purposes is outside the scope of his employment for "[u]nless an assault, or other tort, is actuated in part at least by a purpose to serve a principal, the principal is not liable." M. J. Uline Co. v. Cashdan, 84 U.S.App.D.C. 58, 59, 171 F.2d 132, 133 (1948), quoting from Park Transfer Co. v. Lumbermens Mut. Casualty Co., 79 U.S. App.D.C. 48, 142 F.2d 100 (1944). The question then is one of degree, and "[e]ach case must be decided in its own unique factual setting." S. Birch & Sons v. Martin, 17 Alaska 230, 244 F.2d 556, 560 (9th Cir.), cert. denied, 355 U.S. 837, 78 S.Ct. 62, 2 L.Ed.2d 49 (1957).

We agree with appellant's contention that there was evidence presented at...