Miller v. Federated Dept. Stores, Inc.

Decision Date04 December 1973
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Sydney Berkman, Boston (Carl K. King, Boston, with him), for plaintiffs.

Thomas D. Burns, Boston (Mitchell J. Sikora, Jr., Boston, with him), for defendant.


TAURO, Chief Justice.

This is an action in tort by the plaintiff Bertha Miller for personal injuries intentionally inflicted on her by an employee of the defendant Federated Department Stores, Inc. (Federated), while shopping in Filene's, Federated's downtown Boston store. Her husband, in other counts, seeks consequential damages. 1

A jury returned verdicts for the plaintiffs on counts 1 and 3 against Federated and on counts 5 and 6 against the employee. There were verdicts for Federated on counts 2 and 4. The case was before the Appeals Court and is before us solely on Federated's bill of exceptions, and the only issue presented was whether the trial judge erred in denying its motion for directed verdicts on counts 1 and 3. The counts against the employee were not before the Appeals Court and are not before us. The exceptions were sustained by the Appeals Court, Mass.App.Ct., a 294 N.E.2d 474, and the case is here on the plaintiffs' application for further appellate review. See G.L. c. 211A, § 11, inserted by St.1972, c. 740, § 1; S.J.C. Rule 3:24, § 7, --- Mass. --- (1972).

First, the plaintiffs argue that the Appeals Court decision concerning Federated's motion for directed verdicts is not based on the evidence most favorable to the plaintiffs. See, e.g., McFaden v. Nordblom, 307 Mass. 574, 30 N.E.2d 852 (1940). The plaintiffs contend that the court ignored certain evidence favorable to them, specifically the testimony of the Federated employee, William Melnick, who committed the assault. Second, the plaintiffs argue that the Appeals Court erred in its interpretation of the substantive law on the question of an employer's liability for the intentional torts of his employee. The Appeals Court held that Melnick's assault on Mrs. Miller was not committed within the scope of his employment and that the circumstances of this case can be distinguished from those in earlier cases where liability was imposed on the employer. The plaintiffs contend that the decision of the Appeals Court is inconsistent with recent decisions of this court holding the employer liable, particularly Rego v. Thomas Bros. Corp. 340 Mass. 334, 164 N.E.2d 144 (1960), and Hobart v. Cavanaugh, 353 Mass. 51, 228 N.E.2d 439 (1967), and assert that '(i)n fact . . . the instant case is indistinguishable from (the) Rego and Hobart (cases).' We disagree.

We summarize the pertinent testimony as it relates to these issues. On the morning of May 8, 1968, Mrs. Miller was shopping in Federated (Filene's basement store) in Boston. William Melnick was on the premises in his capacity as a porter, his duties consisting of cleaning the floors and emptying trash containers. In connection with his work, he had a cart, roughly four feet long and four feet wide, which he used as a receptacle. On his janitorial rounds, Melnick pushed this cart through the aisles between the merchandise counters. When it was a particularly busy day and the aisles were crowded, it was sometimes necessary, in order to get all his work done, that he 'sideswipe' a few customers, but not with enough force to do any harm. May 8 was a particularly busy day. He remembered that on that morning he 'went through a customer,' felt a sharp pain in his leg, turned around, and saw Mrs. Miller looking at him. Mrs. Miller testified that as she stood at a merchandise counter, she felt something hit her ankle, looked over her shoulder, and saw Melnick pushing a canvas cart. She said she had never before seen Melnick pushing a canvas cart nor had she ever seen him prior to this incident.

It is at this chronological point that there is a material divergence in the testimony of Mrs. Miller and Melnick. According to Mrs. Miller, after the 'sideswipe' episode, she returned to examining the goods on display, remained there for five or ten minutes, and then proceeded down the aisle. About two feet from the end of the counter she looked straight ahead and saw Melnick standing in the middle of the aisle at the end of the counter, seemingly waiting for the elevator. It being necessary to pass him, and there being sufficient room to do so, Mrs. Miller approached, stopping, however, to say, 'If you would say, 'excuse me', people could get out of your way.' Mrs. Miller testified that she said this in a '(l)adylike' manner, manifesting no hostility. Nevertheless, Melnick pushed her on the left shoulder. She told him to take his hands off her. He then punched her in the face, knocking her to the ground.

In his testimony Melnick did not deny that he hit Mrs. Miller, but he gave a different story as to the events leading up to the incident. He testified that Mrs. Miller was no stranger. Before May 8, he had seen her in Filene's approximately a dozen times. On most of those occasions, she remained in the way of his cart as he made his rounds, blocked his progress and caused him delay. Moreover, Melnick testified, she had hit him during approximately eight of these encounters, and that once she said, 'You lost my purse. You stole my purse.' Thus, according to Melnick, the May 8 incident was just one in a series of difficulties he had with Mrs. Miller. He testified that during the few moments immediately following his 'sideswipe' there was no more contact with Mrs. Miller and that he had gone about his work. He made his way up the right hand side of the aisle, stopping at various counters and emptying cans of debris into his cart. When he reached the end of the counter, he reversed his direction and began to perform the same duties on the left side of the aisle. About midway down the aisle, he saw Mrs. Miller standing there, looking 'very determined.' There was room to pass her, and he tried to go to the right of her as slowly as possible, at the same time asking her, 'Please, stop kicking me, please stop hitting me.' Melnick testified that in spite of this, Mrs. Miller struck his face, shoulder and chest. It was at this point that he struck Mrs. Miller. His final statement on the witness stand was that '(w)hen he slapped her, he would not call it an instance when she had been in his way.'

On this evidence, the Appeals Court held that the trial judge erred in denying the motion for directed verdicts in favor of Federated. Mass.App.Ct., b 294 N.E.2d 474. The Appeals Court, in a rescript opinion, gave a brief recitation of the facts which may be fairly characterized as a summary of Mrs. Miller's testimony without reference to Melnick's version of the incident. The Appeals Court's conclusion was concise: 'In our examination of the evidence in its aspect most favorable to the plaintiffs, we are unable to find that the unprovoked assault by the employee on the plaintiff Bertha Miller was within the scope of his employment and in furtherance of the employer's work.' Id.

The plaintiffs argue that the Appeals Court decision was not based on an assessment of all the evidence, viewed most favorably to the plaintiffs. From that court's failure to incorporate Melnick's version of the assault incident in its recitation of facts, the plaintiffs infer that Melnick's testimony was disregarded. This testimony, they contend, even though contradictory in large part to Mrs. Miller's own testimony, can be viewed as favorable to their position, and thus, under McFaden v. Nordblom, 307 Mass. 574, 30 N.E.2d 852 (1940), 2 it should have been considered by the court. In short, they argue that Melnick's testimony, to the effect that Mrs. Miller had obstructed him in the past and was harassing him on the morning when the assault occurred, when considered with his uncontradicted statements that on busy days he was under pressure and had to 'sideswipe' customers on occasion, warranted a finding by the jury that the assault was for the purpose of preventing interference with Melnick's work and was thus in furtherance of his employer's work.

The mere fact that the employee's testimony, in this respect, was not mentioned in the rescript opinion of the Appeals Court does not require a conclusion that it was not considered. The short answer is that the Appeals Court decision states that it is based on 'our examination of the evidence in its aspect most favorable to the plaintiffs.' This reference by the Appeals Court is necessarily to the entire record which the court had before it, which, our own examination reveals, fully recites the testimony of both Mrs. Miller and Melnick. Thus, there is no basis for the contention that the Appeals Court failed to give full consideration to 'favorable' portions of the Melnick testimony.

We now come to the central issue in this case, whether the jury, on the basis of all the evidence most favorable to the plaintiffs, rationally could have found that Melnick was acting within the scope of his employment when he struck Mrs. Miller. An evaluation of all the evidence, including Melnick's testimony, leads us to conclude that such a finding was not warranted and, therefore, that Federated was entitled to directed verdicts on counts 1 and 3.

This court has on numerous occasions dealt with the substantive question of an employer's liability for the intentional torts of his employee. 3 In a leading early case, Levi v. Brooks, 121 Mass. 501, 505 (1877), it was said that 'The test of the liability of the master is, that the act of the servant is done in the course of doing the master's work, and for the purpose of accomplishing it.' In that case this court imposed liability on an employer, the owner of a furniture store, for assault committed by his workers in the course of their...

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