Nash v. Sears, Roebuck & Co.

• Decision Date: 09 March 1970
• Docket Number: No. 25,25
• Citation: 383 Mich. 136,174 N.W.2d 818
• Parties: Mary Lee NASH and Dan Nash, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND COMPANY, a New York Corporation, Heidt's Protective Service, Inc., a Michigan Corporation, Defendants-Appellants, and Art Keolian, Defendant.
• Court: Michigan Supreme Court

Page 818

174 N.W.2d 818

383 Mich. 136

Mary Lee NASH and Dan Nash, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND COMPANY, a New York Corporation, Heidt's

Protective Service, Inc., a Michigan Corporation,

Defendants-Appellants,

and

Art Keolian, Defendant.

No. 25.

Supreme Court of Michigan.

March 9, 1970.

Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, for appellant Sears, Roebuck and Co., Arnstein, Gluck, Weitzenfeld & Minow, Chicago, Ill., of counsel.

Rothe, Marston, Mazey, Sachs & O'Connell, Alexander, Buchanan & Conklin, Detroit, for appellees.

Before the Entire Bench, except BRENNAN, C.J.

T. M. KAVANAGH, Justice.

On September 4, 1962, a uniformed guard, defendant Keolian, in the employ of defendant Heidt's Protective Service, Inc., apprehended plaintiff, Mary Nash, as she was leaving the store of defendant Sears, Roebuck & Company, Keolian purportedly acted upon the information of a Sears' saleslady, who allegedly witnessed a woman, identified by her as plaintiff, shoplifting. When Keolian confronted plaintiff and requested her to accompany him to the store, she refused and started to walk away. Keolian shoved her to the ground, straddled her body, and pinned her arms above her head. When the police arrived, both Keolian and Mrs. Nash were taken to the station, and subsequent search and investigation proved the shoplifting charge to be without foundation.

Plaintiffs sued Sears, Heidt's and Keolian on the theories of false arrest, false imprisonment, and assault and battery. Sears and Heidt's filed cross-claims respectively seeking indemnification should plaintiff recover. Keolian filed no appearance or answer and default was entered against him.

The trial judge directed a verdict for plaintiffs against Sears and Keolian, but denied motion of Sears for a directed verdict on its cross-claim against Heidt's. At the conclusion of the trial, the jury returned a verdict for plaintiffs against all three defendants and returned verdicts of no cause on the respective cross-claims of Sears and Heidt's.

The Court of Appeals unanimously affirmed the jury's verdict against all three defendants on the plaintiffs' claim and the verdict of no cause on Heidt's cross-claim. Judge Levin dissented for the reason the trial judge erroneously charged the jury, further discussed Infra, and would have reversed and remanded for new trial as to Sears on its cross-claim against Heidt's. 12 Mich.App. 553, 163 N.W.2d 471.

Leave to appeal was granted by this Court (381 Mich. 800), limited to the questions presented by the cross-claim of Sears against Heidt's. Sears, having filed the only brief with this Court in this cause, frames the issues as follows:

(1) Did the trial court err in refusing to direct a verdict for Sears on its cross-claim against Heidt's?

(2) Did the trial court err in charging the jury that it should decide the question of whether a contract for guard services implied that the services would be performed by a qualified guard?

Addressing itself to the first issue, Sears argues that Heidt's is as a matter of law liable either on a contract theory--'that where one contracts to furnish services to another the law implies that the services will be performed by one qualified to act and performed in a reasonable and proper manner'--or on a negligence theory--'that an agent or independent contractor is liable to his principal or general contractor in tort for negligence proximately causing damage.'

Although we accept Sears' generally cited authority supporting the negligence theory, on the record before us we are not inclined to hold that there were no such issues of fact to be submitted to the jury or that as a matter of law Sears was not guilty of any proximately causative negligence. Cochran v. Pinto (1952), 333 Mich. 91, 52 N.W.2d 611; Gerard v. Small (1969), 382 Mich. 327, 169 N.W.2d 917. Rather, we accept Judge Levin's view of the facts in this case as presenting a submissible jury question (pp. 569, 570, 163 N.W.2d p. 479):

'Keolian was given detailed instructions by both Heidt's and Sears concerning the performance of his duties for Sears. Both retained a measure of control over him and the right to supervise, direct and discharge him from further service for Sears. One of Heidt's witnesses testified it had the right to pull a guard assigned to Sears off the job while he was at Sears and to replace him with someone else. Heidt's retained the right to continue to supervise Keolian to the extent it chose to do so. Keolian's services for Sears did not involve an abandonment of his service for Heidt's, and at the time of the incident Keolian had not ceased to be one of Heidt's servants.

'Keolian worked side-by-side with and for Sears' employes. He was expected to respond to intelligence received from other Sears' employees, even though he had been instructed not to arrest unless he himself witnessed a shoplifting incident. Keolian was on Sears' premises as an integral part of the complex of employees whose combined services make it possible to operate a modern department store in a major metropolis. He was Sears' servant and Sears together with Heidt's was responsible for his torts, intentional as well as negligent.'

Holding from this record that Keolian was the servant of both Sears and Heidt's, ¹ it is not necessary to either carve out another exception to the general rule of vicarious liability, viz., nondelegable duty ² or to discuss the factually inapplicable distinction between active viz a viz passive tortfeasors. ³ Upon this record it is clear that Sears was required to exercise reasonable care for the protection of others in view of the control which Sears exercised over the guard's activities, and this issue was properly submitted to the jury. See Bissell v. Ford (1913), 176 Mich. 64, 141 N.W. 860, citing Wright v. Big Rapids Door & Blind Manufacturing Co. (1900), 124 Mich. 91, 82 N.W. 829, 50 L.R.A. 495; Larsen v. Home Telephone Co. (1911), 164 Mich. 295, 129 N.W. 894; Ripley v. Priest (1912), 169 Mich. 383, 135 N.W. 258; see, also, Prosser, Torts, p. 481 (3d Ed.); 2 Harper & James, Torts, § 26.11, p. 1395, at 1399, citing as authority Black Springs L. Co. v. Palmer (1936), 192 Ark. 1032, 96 S.W.2d 469; Burlingham v. Gray (1943), 22 Cal.2d 87, 137 P.2d 9; Scorpion v. American-Republican, Inc. (1944), 131 Conn. 42, 37 A.2d 802; Cochran v. Pinto (1952), 333 Mich. 91, 52 N.W.2d 611; Siidekum v. Animal Rescue League (1946), 353 Pa. 408, 45 A.2d 59.

Next, Sears contends that on a contract theory the trial court should have directed a verdict on its cross-claim against Heidt's.

In view of the conflicting testimony presented by this record, the factual determination of the scope and provisions of the oral contract--particularly as it concerns the issues of 'control' of security guards and the 'no arrest' instructions--was properly left to the province of the jury. Shannon v. Polish Falcons of America (1957), 348 Mich. 92, 82 N.W.2d 523; Reinhard v. Grand Rapids School Equipment Co. (1920), 211 Mich. 165, 178 N.W. 718; Bellows v. Crane Lumber Co. (1901), 126 Mich. 476, 85 N.W. 1103; Jenness v. Shaw (1876), 35 Mich. 20. The mere fact that the contractual relationship involved an independent contractor and the employer, neither of whom were principal plaintiffs, does not alter the allocation of function between court and jury from that prescribed in any other case where a contract is to be construed. See Braxton v. Mendelson (1922), 233 N.Y. 122, 135 N.E. 198.

The trial court committed no error in submitting these controverted factual questions to the jury.

The trial judge, however, went further and instructed the jury that:

'This relationship between Sears and Heidt's is a contract, and one of the things for you to determine under the cross-claim of Sears is whether one of the things agreed to under that contract was whether a qualified guard was to be sent over * * *.'

In this respect the trial court erred.

Every contract of employment includes an obligation, whether express or implied, to perform in a diligent and reasonably skillful...