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JOSEPH P. FITZGERALD v. JACK MCCUTCHEON (09/28/79)

filed: September 28, 1979.

JOSEPH P. FITZGERALD, JR.
v.
JACK MCCUTCHEON, CITY OF PHILADELPHIA, AND ROBERT H. FOERDERER REPUBLICAN CLUB. APPEAL OF CITY OF PHILADELPHIA



No. 984 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Entered at 1943, December Term, 1968.

COUNSEL

Barry J. Grossman, Assistant City Solicitor, Philadelphia, for appellant.

Joseph Fitzgerald Furlong, Jr., Philadelphia, for appellee.

Van der Voort, Wieand and Lipez, JJ.

Author: Wieand

[ 270 Pa. Super. Page 104]

Joseph P. Fitzgerald, Jr. was shot six times by Jack McCutcheon, his neighbor and an off-duty policeman. Fitzgerald instituted an action in trespass against McCutcheon, the City of Philadelphia, and the Robert H. Foerderer Republican Club and recovered a verdict against McCutcheon and the City of Philadelphia.*fn1 The court below granted the City's motion for new trial because it found that it was error to allow the jury to consider the issue of whether the City had been negligent in hiring McCutcheon.*fn2 The City's motion for judgment n. o. v., however, was denied, the court holding that the verdict could be sustained on principles of respondeat superior. The City appealed. We reverse.

In reviewing the denial of a motion for judgment n. o. v., the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the verdict

[ 270 Pa. Super. Page 105]

    winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Rost v. Wickenheiser, 229 Pa. Super. 84, 323 A.2d 154 (1974). All conflicts in the evidence must be resolved in favor of the prevailing party. Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 359 A.2d 440 (1976). A judgment n. o. v. should only be entered in "a clear case where the evidence is insufficient to sustain a verdict . . ." and should not be granted if "the evidence on a material point presented an issue of fact for decision by the jury." Eldridge v. Melcher, 226 Pa. Super. 381, 386, 313 A.2d 750, 753 (1973).

On the evening of June 5, 1968, McCutcheon was off duty and had been off duty for that entire day. Although attired in the trousers of his police uniform, he had spent the evening cleaning the basement of his home. About 11:00 o'clock, P.M., he joined Fitzgerald on the porch of the adjacent apartment building where Fitzgerald resided. There the two men drank beer until one o'clock, A.M., when they determined to shoot a game of pool. Finding the neighborhood bar closed, they proceeded to the Foerderer Republican Club, where McCutcheon joined in playing a game of pool and both men continued to drink beer. McCutcheon became loud and argumentative and was asked to leave about 2:00 o'clock, A.M. The two men thereafter left the club and returned to their homes; but instead of retiring, McCutcheon announced that he wanted to go to Chinatown for breakfast. Appellee declined McCutcheon's invitation to accompany him. McCutcheon's wife, who had emerged from the house, also refused to go with her husband. An argument ensued between McCutcheon and his wife, during which he threatened to "blow your head off." During the confrontation, Mrs. McCutcheon asked Fitzgerald to remove the keys from the ignition of McCutcheon's vehicle, which Fitzgerald did. He delivered the keys to Mrs. McCutcheon and returned to his own apartment. A short time later McCutcheon began beating on the lower door to the building in which Fitzgerald's apartment was located and eventually broke it. Fitzgerald, concerned for the safety

[ 270 Pa. Super. Page 106]

    of his small son, went downstairs and onto the porch where McCutcheon demanded the return of his car keys. Appellee attempted to explain that he did not have them, and McCutcheon's wife confirmed that she had the keys. McCutcheon refused to accept this explanation and again demanded the keys, saying to appellee that he would "place him under arrest for stealing the keys." McCutcheon thereupon drew a gun and shot Fitzgerald six times. The gun used by McCutcheon was a .38 Colt with a 2" barrel. It had not been issued to McCutcheon by the City and was not registered in his name at the police department.*fn3

A master is liable for the acts of his servant which are committed during the course of and within the scope of the servant's employment. Lunn v. Yellow Cab Company, 403 Pa. 231, 169 A.2d 103 (1961); Potter Title and Trust Company v. Knox, 381 Pa. 202, 113 A.2d 549 (1955); Restatement (Second) of Agency § 219. This liability of the employer may extend even to intentional or criminal acts committed by the servant. Pilipovich v. Pittsburgh Coal Company, 314 Pa. 585, 172 A. 136 (1934); McMillen v. Steele, 275 Pa. 584, 119 A. 721 (1923); Restatement (Second) of Agency § 231. Whether a person acted within the scope of employment is ordinarily a question for the jury. Orr v. William J. Burns International Detective Agency, 337 Pa. 587, 12 A.2d 25 (1940); Straiton v. Rosinsky, 183 Pa. Super. 545, 133 A.2d 257 (1957). Where, however, the employee commits an act encompassing the use of force which is excessive and so dangerous as to be totally without responsibility or reason, the employer is not responsible as a matter of law. If an ...


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