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DEMPSEY v. WALSO BUREAU (10/03/68)

decided: October 3, 1968.

DEMPSEY, APPELLANT,
v.
WALSO BUREAU, INC.



Appeal from judgment of Court of Common Pleas No. 10 of Philadelphia County, June T., 1965, No. 5485, in case of Thomas E. Dempsey v. The Walso Bureau, Inc.

COUNSEL

David Weinstein, for appellant.

George P. Williams, III, with him Schnader, Harrison, Segal & Lewis, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents.

Author: Jones

[ 431 Pa. Page 563]

On April 6, 1965, Thomas Dempsey was employed as a night dispatcher at the bus terminal of Safeway Trails, Trailways Bus Company (Trailways) in Philadelphia. On that date and for some time prior thereto, Trailways had a contract with Walso Bureau, Inc. (Walso), an investigating and security agency, to provide security guards for Trailways' bus terminal. On that date and for some months prior thereto, Walso had in its employ one Kenneth Steinberg as a security guard, his place of duty being the same bus terminal at which Dempsey was a dispatcher.

On April 6, at approximately 2:00 a.m., Steinberg entered the dispatcher's booth at the terminal wherein

[ 431 Pa. Page 564]

Dempsey was sitting at his desk. Steinberg pulled Dempsey out of his chair, bent him over backwards and pinioned him, with his knee in Dempsey's back, for several minutes despite Dempsey's protests. Allegedly, by reason of Steinberg's actions, Dempsey sustained severe personal injuries.

To recover damages for his injuries, Dempsey instituted a trespass action in Court of Common Pleas No. 10 of Philadelphia County against Walso. Upon issue joined, the matter was heard before the court without a jury and, after hearing, the court dismissed Dempsey's complaint and directed the entry of a judgment in favor of Walso and against Dempsey. Upon dismissal of exceptions to this order by the court en banc, judgment was entered and the instant appeal was taken.

At the outset, it must be noted that Dempsey does not predicate liability on Walso's part under the doctrine of respondeat superior because it is obvious and, in fact, conceded that Steinberg's actions were outside the scope of his employment. On the contrary, Dempsey's theory of liability is that, by reason of Steinberg's conduct on various occasions prior to April 6, Walso knew or, by the exercise of reasonable care, should have known of Steinberg's dangerous propensity for violence and should not have continued him in its employ and, moreover, Walso, before hiring Steinberg, did not exercise reasonable care in its selection and should not have hired a person inclined to violence.

The reasoning of the court below was that the evidence of record as to Steinberg's prior conduct revealed simply "horse-play" rather than a propensity to violence and that Walso did not know or have reason to know of Steinberg's actions prior to April 6; furthermore, there was no evidence of any lack of care in investigating Steinberg's background prior to his employment

[ 431 Pa. Page 565]

    and nothing to indicate that Walso was negligent in hiring him.

The questions raised on this appeal, although seven in number, actually fall into two categories: first, whether the evidence of record was sufficient to establish liability on Walso's part, and, second, whether in its rejection of certain proffered evidence, the court committed error.

Dempsey relies upon Restatement 2d, Torts, ยง 317, to establish liability for Steinberg's actions after he had been ...


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