Drug Fair of Maryland, Inc. v. Smith

Digges, J., delivered the opinion of the Court. The appeal here is from the Circuit Court for Montgomery County (Moorman, J.) where, following a jury’s verdict, a judgment for $60,000 was entered against appellant, Drug Fair of Maryland, Inc. David A. Smith, appellee, brought this action for assault and battery, false imprisonment, and malicious prosecution. On May 1, 1969 Mr. Smith, his wife Josephine and their three year old daughter Adriana, visited his parents in Chevy Chase, Maryland. He was barefooted, wearing levis, a sweater and a T-shirt because he planned, while there, to wash his car.

They stayed at his parents for dinner and then shortly after 10:00 p.m. left for their own home. On the way, remembering they needed some milk for their daughter, they stopped at the all-night Drug Fair on Georgia Avenue where Smith, mo ³⁴⁴ mentarily leaving his family in the car, went in for it. What transpired once appellee was in that store is the basis of this controversy and each party offers a different version of the facts. Mr. Smith says that upon entering the drug store he noticed a group of people as he made his way toward the milk counter.

About half-way there his arm was suddenly grabbed from the rear and instinctively he pulled free but was again grabbed and eventually wound up the victim of a hammerlock. For the first time the person behind identified himself as a Montgomery County police officer and informed appellee that he was under arrest for assault and battery. The officer, William Hess, then pushed Smith toward the rear wall and thoroughly searched him as he was standing in broken glass. He protested this treatment but was told by Hess to “shut up” or a .44 magnum pistol would be used on him; he was then handcuffed and detained, pending the arrival of the police.

The appellee further claimed that during this incident a number of people were laughing and making derisive comments about the whole affair. Drug Fair through its witnesses related the same incident in a different manner. It claims that when appellee entered the store on May 1 he was told by the assistant manager, Richard E. Jackson, that he would not be permitted to stay without shoes. Smith replied that he was “just going to buy a half-gallon of milk and would get right out.” The admonition was repeated but disregarded and Smith continued toward the milk counter.

Mr. Jackson then summoned Hess, a part-time night clerk at the store and told him to remove the intruder. The clerk, who was also a regular Montgomery County policeman, approached the appellee, identified himself and asked the prospective customer to leave the premises. Hess admits he grabbed Smith’s arm in an effort to usher him out the door “as you would a lady,” but as he did so appellee turned around and with his hand struck his escort in the nose. Smith was then put in a hammerlock with Hess applying only as much pressure ³⁴⁵ as was necessary to subdue him; he was frisked, handcuffed and a few minutes later the police arrived.

As to what happened following the arrival of the police, both parties are in basic agreement. Mr. Smith was taken to the Silver Spring police station where he was presented to the committing magistrate. He was questioned, photographed, fingerprinted, and detained in a holding cell for several hours. He was told he could call a bondsman, but this proved futile since the only one he could contact was playing poker that night and unwilling to come to his aid.

The appellee later was transferred to the Montgomery County Detention Center where he spent the rest of the waning night. The next day he was taken to People’s Court and finally released on his personal recognizance. Smith then went home, called his supervisor Mr. Buechs, at IBM where he worked, in order to give an explanation for his absence. At this point the facts again are in dispute, with David Smith claiming that upon hearing this gruesome tale his boss informed him that he no longer was employed.

Buechs and a general supervisor at IBM, Mr. Hance, both state that appellee was not dismissed but rather voluntarily resigned. In any event as of May 2, 1969 he no longer worked for IBM in a job paying him $475.00 per month. Smith remained unemployed for two weeks and eventually went to work for the Yellow Cab Company. At present he attends the University of Maryland full time and works as a sports car mechanic on the side.

On May 21, Smith went to trial in the People’s Court of Montgomery County on the charge of assault and battery. Both Hess and Jackson testified but Judge Miller found the appellee not guilty. Smith then brought this action and a jury awarded him $24,000 in compensatory and $36,000 in punitive damages. From that decision Drug Fair appeals claiming the trial court in several instances committed reversible error.

I The first argument the appellant posits for our con ³⁴⁶ sideration is whether, as a matter of law, William Hess was a servant of Drug Fair, Inc., acting within the scope of his employment. It is well settled in Maryland and other jurisdictions that a master is liable for the acts of his servant, when such acts are performed with the employer’s actual or implied authority. In Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 580 , 119 A. 2d 423 (1956) Judge Delaplaine said for the court: “In the law of agency, it is the basic general rule that a master is liable for the acts which his servant does with the actual or apparent authority of the master, or which the servant does within the scope of his employment, or which the master ratifies with the knowledge of all the material facts. This rule is founded upon the maxims of the common law, ‘qui facit per almm facit per se,’ which indicates the legal identity of the principal and his agent, and ‘respondeat superior,’ which indicates the tort liability of the principal.

The law considers that the master holds out his servant as competent and fit to be trusted, and thereby he in effect warrants his servant’s fidelity and good conduct in all matters within the scope of his employment.” LePore v. Gulf Oil Corp., 237 Md. 591 , 207 A. 2d 451 (1965); 2 Harper and James, The Law of Torts, §§ 26.6-.7 (1956); Prosser, Law of Torts, Ch. 13 (3d ed. 1964). In the present case, appellant concedes that Mr. Hess was an employee, however, it further contends that the altercation involving him and David Smith was separate from any employment and instead a personal matter between them. Therefore, Drug Fair argues it was error for the trial court to instruct the jury as a matter of law, that Hess was its agent acting within the scope of his employment. It claims there was a factual dispute that should have been resolved by the jury.

We recognize that the issue of whether axservant is acting ³⁴⁷ within the scope of his employment is ordinarily a question for the jury but this is so, only if there is a factual dispute. Lewis v. Accelerated Express, 219 Md. 252, 256 , 148 A. 2d 783 (1959); Greer Lines Co. v. Roberts, 216 Md. 69, 80 , 139 A. 2d 235 (1958); Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214 , 92 A. 478 (1914); cf. Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173 , 122 A. 2d 457 (1956). In the case before us, we do not find a factual dispute as to the scope of Hess’ usual duties. It is true that the testimony of Jackson and Hess presented differing descriptions as to what were these duties.

However, their testimony, taken together with that of Stanley Horowitz, the corporate secretary of Drug Fair, is not at all contradictory; rather each amplifies the other and produces a more complete picture. With no further clarification Mr. Horowitz at trial said that Hess was employed as a clerk. Mr. Jackson, the assistant manager of the Georgia Avenue Drug Fair, stated that Hess was a clerk and defined his duties as follows: “to help the customers in the store and rearrange the merchandise.” Jackson also related that Hess on occasion made night deposits at the bank. Mr. Hess testified that not only was he employed as a clerk, but in addition “. . . was hired to attempt to quell some of the shoplifting within the store.

It was getting to the point where it was getting out of hand, the company was losing a lot of money in thefts which we did succeed somewhat with several apprehensions, I would say, four to five apprehensions in shoplifting.” We think it is quite doubtful that this evidence presents a factual dispute. However, we are not called upon to lay this issue to rest on that point. Even assuming these statements are conflicting, a jury question is still not presented since appellant’s own witness, Hess, has clearly and without contradiction related that he was told by his superior to remove David Smith from the store. He testified : ³⁴⁸ “The next thing I knew Mr. Jackson came back to me and asked me if I would ask the gentleman to leave the store; that he was being ignored.” This is further confirmed by reference to Hess’ written application for a warrant (received in evidence) where he stated that “upon request of Richard Jackson, Assistant Manager of Drug Fair ...

I apprehended . . . David Alan Smith identifying myself as a police officer, told Mr. Smith to leave the store as requested by Mr. Jackson.” (Emphasis added.) Nothing inconsistent with these statements was presented by any other witness, including Jackson himself. It is also clear from the testimony of the corporate secretary that Jackson’s directive was in accord with company policy, albeit unwritten, to prohibit persons with bare feet from coming into any Drug Fair store. In this case what we have is the assistant store manager pursuing company policy and when failing, summoning a subordinate to rectify the situation.

Nowhere has it been suggested that this was not the factual pattern. Therefore, even with the dubious assumption that originally Hess was a store clerk only, and not a security officer, the fact that his superior instructed certain actions, which were actually performed in his presence, clearly places Hess’ subsequent conduct within the scope of his employment. LePore v. Gulf Oil Corp., supra; Lewis v. Accelerated Express, supra; Hopkins C. Co. v. Read Drug & C. Co., supra. The appellant next argues that even if Hess was simply doing his job when he originally approached Smith, what followed this initial encounter, including the subsequent altercation and arrest, was unrelated to his employee duties and therefore, Drug Fair is not liable under the theory of “respondeat superior.” This contention is ³⁴⁹ clearly incorrect.

While there are some factual disputes as to what occurred when Smith entered the drug store, there is total agreement that the entire incident took place in one brief and continuous sequence, lasting no more than twenty minutes. At all times Hess was acting at his employer’s behest in trying to remove the appellee from the store. There is no way the initial act in which he “took him by the arm, as you would a lady” can be separated from what followed. It all was interrelated to his supervisor’s original request, and this being so, these activities are not severable but rather one transaction, all for Drug Fair’s express benefit.

In Balto. & Ohio R. Co. v. Strube, 111 Md. 119, 127-28 , 73 A. 697 (1909) with a factual situation akin to the present case, the Court said: “In this case both the arrest and the assault occurred ... as part of one and the same transaction, apparently within the space of a very few moments of time, and it would not do under such circumstances for the Court to say or submit to the jury to say, that immediately after putting his hands on Strube and saying T am going to put you under arrest,’ that thereafter McCarron ceased to be an employee of the defendant and became merely an officer of the State. If McCarron was acting within the scope of his employment in making the arrest, the defendant would be responsible even if McCarron acted maliciously or wilfully in committing the assault, because the whole occurrence was but one transaction. In this case the arrest and the assault must be treated as so merged together into one transaction as to be scarcely separable for practical purposes, even though theoretically they could possibly be regarded as distinct acts.” ³⁵⁰ We arrive at the same conclusion in the present case. As we said in Lewis v. Accelerated Express, supra, quoting from Hopkins C. Co. v. Read Drug & C. Co., supra at 255: “The simple test is whether they were