Before MARIS and GOODRICH, Circuit Judges, and McILVAINE, District Judge.
This is an action brought by Mrs. Bowman and her daughter against an employer for improper conduct on the part of its agent. The jury found for the defendant, judgment was entered on the verdict and the plaintiffs appeal.
The story of the case, as presented in the evidence on the plaintiffs' behalf, runs something like this. Mrs. Bowman, recently widowed, was called upon by a salesman of the defendant insurance company an induced to sign an application for insurance for herself and a younger son. Her eighteen year old daughter signed a similar application. These applications were duly forwarded to the company and were put into the hands of one Bruno who served as "field underwriter" for his employer. As we understand it from the testimony, the field underwriter is supposed to call upon applicants for insurance and ascertain whether the insurance applied for is an appropriate risk for the company to take. Among other things, he is supposed to complete and verify the medical history of the application. In the application for insurance, signed by each plaintiff, there was a statement that the applicant was not "deaf, dumb, blind, ruptured" and so forth. The field underwriter was given the original application cards, which, in addition to the above question, contained some medical history and other information as to an applicant's height, weight, occupation and so on.
Bruno was not a physician and he was not authorized to make medical examinations of applicants. Nevertheless, he provided himself with a black bag which looked like a physician's kit and one day called upon Mrs. Bowman. He had with him the cards signed by Mrs. Bowman and her daughter. He identified himself as a doctor sent by the defendant insurance company. He not only asked questions and weighed the applicants but he made the type of intimate examination which would have been proper enough if he had been authorized to make an examination for the presence of a hernia. But it was obviously improper when not made in the course of a medical examination. He conducted this examination upon both women, more thorough in the mother's case than that of the daughter, and then left. Subsequently the company's real physician called upon Mrs. Bowman. When they learned how they had been imposed upon both mother and daughter claimed resulting physical illness.
Our question in this case is whether there is reversible error in the manner in which the case was submitted to the jury. The problem is wholly one of Pennsylvania law; our jurisdiction is based upon diversity only.
There would be no question about Bruno's individual liability. Such a contact as he inflicted upon plaintiffs is one called in the Restatement an "offensive bodily contact."*fn1 The fact that permission for the touching was obtained by fraud vitiates the consent given by the ad hoc patient.*fn2 The question is, however, whether Bruno's conduct in this instance can be attributed to his employer.
The plaintiff has advanced the theory that the company had a duty of protection which was not delegable and for the violation of which it is responsible even though its employee departed from the line of duty. Cf. Restatement, Agency § 214 (1933). The often cited case of Craker v. Chicago & N.W. Ry., 1875, 36 Wis. 657, 17 Am.Rep. 504, is relied upon. We think the argument not in point. There was no such entrusting of the plaintiff's person or property to the company as is found in the relation of railroad passenger and carrier and the suggestion that insurance is a business vested with the public interest does not strengthen the case.
Nor do we think that we get help here from the myriad of cases in which a servant authorized to keep order or use force under some circumstances uses too much force. E.g., Orr v. William J. Burns International Detective Agency, 1940, 337 Pa. 587, 12 A.2d 25; Fletcher v. Central Wrecking Corp., 1936, 124 Pa.Super. 271, 188 A. 612; Restatement, Agency § 245 (1933).Bruno was not authorized to use any force at all.
Argument is made that the employer was negligent either in hiring Bruno, failing to restrain him or failing to warn plaintiffs in advance that he was not a physician. The trial judge thought nothing of this argument and neither do we. The testimony makes it pretty clear that as soon as his employer found out what Bruno did in this case and others Bruno was immediately discharged.*fn3
If the plaintiff is to recover here, recovery will be based upon the cases which hold a principal responsible for the deception practiced by his agent, notwithstanding the fact that the agent's fraud is not to help his principal but rather, in some cases, to injure him or at any rate to serve himself rather than his employer. The two sections of the Restatement, Agency (1933) which cover this situation are sections 261 and 262. They read as follows:
" § 261. Agent's Position Enables Him to Deceive.
"A principal who puts an agent in a position that enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to ...