Turner v. American District Telegraph & Messenger Co.

• Citation: 94 Conn. 707,110 A. 540
• Court: Connecticut Supreme Court
• Decision Date: 10 June 1920
• Parties: TURNER v. AMERICAN DISTRICT TELEGRAPH & MESSENGER CO.

110 A. 540

94 Conn. 707

TURNER v. AMERICAN DISTRICT TELEGRAPH & MESSENGER CO.

Supreme Court of Errors of Connecticut.

June 10, 1920

Appeal from Superior Court, New Haven County; Frank D. Haines Judge.

Action by Charles W. Turner against the American District Telegraph & Messenger Company. Judgment for plaintiff, and defendant appeals. Error, and new trial ordered.

Action to recover damages for the act of the defendant's servant in assaulting and shooting the plaintiff. Verdict and judgment for the plaintiff for $3,000 and appeal by the defendant. Error, and new trial ordered.

Miner Read & Tullock was a mercantile firm carrying on business in New Haven and occupying for that purpose a building situated at the corner of State and Water streets. The plaintiff was employed by it as a night watchman therein. As such watchman it was his duty to make inspection rounds of the premises at stated intervals during his hours of duty, and in the course of such rounds to " ring in" at boxes installed for that purpose at various points.

The defendant conducted a burglar alarm, night watch and sprinkler supervision service in the city in and from a central office electrically connected with various properties in the city which it was under engagement to serve. Among these latter was the Miner, Read & Tullock establishment. Electrical connections between the company's office and this establishment were such that when the watchman " rang in" on a box that fact would be registered in the defendant's office. If the failure to ring in was continued a specified time after which, according to schedule, it should have been, called a period of grace, it became the defendant's duty, under the terms of its employment by Miner, Read & Tullock, to send a roundsman to the place to ascertain the cause.

The New Haven operating manager of the defendant testified without contradiction that the duties of a roundsman sent in response to a night watch call were under their instructions to locate the watchman, and in case he should be found on duty to ascertain from him why he had failed to " ring in" according to schedule, and in addition to obtain from him a written statement of the cause of his failure entered upon a card or slip provided for that purpose and signed by the watchman, and thereupon to report by telephone to the central office from the place of business visited or some neighboring point, and to return to that office with the signed statement.

At night the defendant's central office was in charge of a night manager, a subordinate of the operating manager, and several roundsmen were there on duty to respond to calls or alarms that might come in. A portion of the equipment of the place was a supply of loaded revolvers, three or four in number, which lay upon a desk ready for use by the roundsmen as required.

During the night of October 18, 1916, the apparatus in the defendant's office indicated that Miner, Read &amp Tullock's watchman had failed to " ring in" either on scheduled time or within the prescribed period of grace. The night manager thereupon dispatched one Sullivan, a roundsman then on duty, to answer the call. As he went, he took with him, as the night manager was aware, one of the revolvers. Upon his arrival at Miner, Read & Tullock's place of business, he entered the office, which was on the second floor of the building. The watchman appeared almost immediately. As Sullivan's whereabouts were unknown to the defendant at the time of the trial, he was not present thereat, and the only testimony concerning what took place subsequent to Sullivan's arrival was that of the plaintiff whose testimony was in substance as follows:

Sullivan reached the office about 4:30 o'clock in the morning. The plaintiff, having just finished his round, came in almost immediately, and found Sullivan smoking. As the rules of the establishment forbade smoking on the premises, the plaintiff reproved Sullivan for his conduct, upon which the latter replied that he was doing the smoking. The plaintiff then filled out the slip presented for the purpose by writing into the blank space provided for entering the excuse for failure to " ring in" the words " Whole round started late," signed it, and handed it back to Sullivan. The plaintiff thereupon left the office, passed into the hallway leading from it to the stairs down to the street, turned on the electric light, and began to look for a broom with which to finish some cleaning. Sullivan followed shortly, and when he had reached nearly to the head of the stairs said to the plaintiff, " Can't you keep awake for an hour?" Thereupon a wordy altercation ensued in which sharp language was used, bad names called, and ill temper displayed. In the end words led to a scuffle between the two men, and the scuffle ended by Sullivan drawing his revolver and shooting the plaintiff in the left leg.

Sullivan was not licensed to carry concealed weapons. A fellow roundsman testified that the night manager had given general orders for the roundsmen to take revolvers with them when they answered night watch calls and the jury might reasonably have found that fact, although the operating manager testified that he knew of no such orders, or that the roundsmen were accustomed to carry weapons in response to night watch calls. The then night manager was not present at the trial, and did not testify.

Where a night watchman employed by a third party was shot during a quarrel by defendant's roundsman, who was sent to investigate the watchman's failure to " ring in" at a signal box, liability cannot be based upon defendant's action in sending out the roundsman with a revolver, unless it knew that he was a reckless person and unfit to be trusted therewith.

Frederick H. Wiggin and J. Dwight Dana, both of New Haven, for appellant.

Charles S. Hamilton, of New Haven, for appellee.

PRENTICE C.J.

The first of the defendant's reasons of appeal is based upon the court's denial of its motion to set aside the verdict and grant a new trial. The plaintiff claimed a recovery upon three grounds, to wit: (1) That Sullivan's unjustifiable use of his revolver was the act of the defendant's servant in the course of his employment by and on behalf of the defendant; (2) that the defendant was negligent in intrusting to Sullivan, to quote the language of the defendant's brief, " an unlicensed, reckless young man, a loaded revolver, in violation of the statute laws of the state, when it knew, or by the exercise of reasonable care might have known, that he was an unfit and reckless person and liable to fall into a passion, and in that it did not select a proper and fit person for the duties assigned him" ; and (3) that the defendant had ratified Sullivan's act, and thus made it its own. The defendant asserts that the evidence failed to furnish a reasonable foundation of fact for either of these conclusions.

The law applicable to the first claim of recovery is well settled. In Stone v. Hills, 45 Conn. 44, 47 (29 Am.Rep. 635), is a statement of the rule which has since been repeatedly approved:

" The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not within these conditions the servant alone is responsible." Ritchie v. Waller, 63 Conn. 155, 160, 28 A. 29, 27 L.R.A. 161, 38 Am.St.Rep. 361; McKiernan v. Lehmaier, 85 Conn. 111, 114, 81 A. 969; Carrier v. Donovan, 88 Conn. 37, 40, 89 A. 894.

From this statement it appears that there are three sets of conditions under which an employé may be liable for the tort of his agent, to wit: (1) When the tortious act is done in obedience to the express orders or directions of the master; (2) when it is done in the execution of the master's business within the scope of his employment; and (3) when it is warranted by the express or implied authority conferred upon the servant, considering the nature of the services required, instructions given, and the circumstances under which the act was done.

Consideration of the first of these conditions may be dispensed with since there is no evidence or claim that Sullivan's act was done in obedience to an express order or direction of the defendant. If conditions imposing liability upon it for Sullivan's wrongdoing existed, the...