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April 18, 1955


Appeal, No. 191, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 3568, in case of Potter Title & Trust Company, Admr., Estate of Louis Edward DiLembo, Deceased, etc. v. Silas Knox, Lenzie Phillips, Gus Jones and Melvin A. Phillips, trading as Owl Taxicab Company. Judgment affirmed.


Harry Alan Sherman, for appellants.

Thomas E. Barton, with him Paul F. Jones, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 381 Pa. Page 203]


This action seeks to apply the doctrine of respondeat superior to facts which do not warrant the imposition of liability upon the employers for the act of the employe who committed the actionable offense.

The suit is based on an event which occurred more than seven years ago, but, since the docket entries have not been printed in the record, we are not informed as to the cause of this long delay in the progress of the litigation.

On February 17, 1948, and for some time prior thereto, taxicab drivers belonging to the A.F. of L. and employed by the Yellow Cab Company in Pittsburgh were on strike; the drivers of the Owl Taxicab Company, a partnership consisting of the present defendants, belonged to the C.I.O. and were not on strike.

[ 381 Pa. Page 204]

On the day in question, at about 1 o'clock A.M. Joshua Allen, a taxicab driver employed by defendants, was transporting passengers in his cab northwardly on Smithfield Street. When he arrived at the intersection of the Boulevard of the Allies he stopped for a red light. At the southwest corner of the intersection a dozen or more persons were congregated, presumably Yellow Cab drivers. A witness to the occurrence testified that "There was a few things said, such as 'Where did you get that load?'" These remarks came from somebody in the crowd and were addressed to Allen. Another witness testified that "... I started hearing these fellows on the corner making different remarks with reference to this Owl driver, where did he obtain this load, you are out of your territory, and different things." A third witness testified merely that "There were remarks made." These witnesses all testified that nobody on the corner left the sidewalk to go into the street or made any movement whatever toward the taxicab. It was stipulated by counsel that six other named witnesses would, if called, have testified similarly to these three.

When the red light changed to yellow Allen started up and as he was crossing the intersection of the Boulevard he opened the window of his cab and fired a revolver toward the men on the corner who were then diagonally to his rear; the shot struck and killed one Louis Edward DiLembo. The administrator of DiLembo's estate brought suit under the Survival Act and his mother brought suit under the Wrongful Death Act to recover damages from Allen's employers, the Owl Taxicab Company. The court below, after hearing plaintiff's testimony, entered a non-suit which was sustained by the court en banc. Plaintiffs thereupon took the present appeal.

[ 381 Pa. Page 205]

In an attempt to impose liability on his employers for the outrageous act which Allen committed,*fn1 plaintiffs rely upon testimony given by a former employe of defendants to the effect that a meeting was had by the management and employes at which the men were encouraged by words and actions of the company's officials to protect themselves against attacks by the strikers. The first question that arose at the trial was in regard to the time when this meeting was held. Coles, the witness referred to, testified, when it was called to his attention that the shooting by Allen occurred on February 17th, that the meeting was held "the day before." that it was held "the day prior to this trouble." However, it appears that two of the company's drivers were arrested on February 17th for carrying revolvers, one at 2:45 P.M and the other at 5:15 P.M. of that day and therefore after the shooting by Allen had taken place, and Coles testified that these arrests were made and word thereof brought to the meeting either while it was still in progress or shortly after it had ended and not all of those present had yet dispersed; he stated unequivocally that, whatever date it may have been, the meeting was on the same day as the one on which these arrests took place, and he thus finally fixed the time in a manner that admitted of no uncertainty. Accordingly the trial judge, having originally admitted all the testimony as to what occurred at the meeting, properly granted defendants' motion to strike it from the record as being irrelevant, which it obviously was.

Let us assume, however, arguendo, that the meeting did precede the event of the shooting. What was said and done there? Coles testified that "They [the drivers] were ordered to protect themselves and defend

[ 381 Pa. Page 206]

    themselves if necessary, and we wouldn't have to worry about being left to rot in jail." And again: "We weren't demanded to work but all those that cared to work were permitted to work and would be protected by the company in case there was any trouble." And again: "Then if you get in trouble protecting yourself the company will go broke behind you." Nothing was said about the drivers carrying revolvers, nor is there any evidence that the officials of the company knew that any of the employes did carry revolvers, and Coles admitted that he did not see any gun at the meeting. He did say that 24 pieces of pipe were there for distribution to any of the 50 employes present who wanted one, but when the company's attorney later entered the meeting he advised that the pipes should all be returned, and when Coles last saw them they were piled up in the garage. It is obvious that, so far from there being anything wrong in the company encouraging the employes to protect themselves against attack, the law itself gave them that right just as it gives the right of self-defense to everyone. Nor could there be any just criticism of the company's assurance that it would stand back of its employes in their exercise of such right and would go bail for them if occasion demanded. The important fact to be noted is that there was not the slightest suggestion on the part of the company's officials that the employes should become aggressors, but only that they should protect themselves if necessary. As to the evidence concerning an alleged distribution of pipes which were afterwards returned, such implements were suitable, at best, for defense in case of a close bodily attack and were a far cry from the possession and reckless use of a revolver. In short, even if the meeting did precede the shooting by Allen, and even if Allen had been present at the meeting, as to which there is no evidence whatever,

[ 381 Pa. Page 207]

    no language or conduct there of the company's officials could, by any stretch of the imagination, be held to have authorized Allen or any of the other drivers deliberately to shoot unoffending persons when there was not the slightest justification for such action.

It is a general rule of law that when an act is done in the course of one's employment the employer will not ordinarily be excused from liability although the employe abused his authority and thereby inflicted injury upon another: Brennan v. Merchant and Co., Inc., 205 Pa. 258, 261, 54 A. 891, 892; Pilipovich v. Pittsburgh Coll Company, 314 Pa. 585, 589, 590, 172 A. 136, 137, 138; Orr v. William J. Burns International Detective Agency, 337 Pa. 587, 590, 591, 12 A.2d 25, 26, 27. But there is an important exception to that general principle. In Restatement Agency, § 229, comment b, it is said that "Although an act is a means of accomplishing an authorized result, it may be done in so outrageous or whimsical a manner that it is not within the scope of employment." In § 231, comment a, it is said: "... a gardener using a small stick in an assault upon a trespassing child to exclude him from the premises may be found to be acting within the scope of the employment; if, however, the gardener were to shoot the child for the same purpose, it would be very difficult to find the act within the scope of employment." In § 235, comment c, under the heading of "Outrageous acts", it is said that "The fact that an act is done in an outrageous or abnormal manner has value in indicating that the servant is not ...

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