Balinovic v. Evening Star Newspaper Co.

113 F.2d 505, 72 App. D.C. 176, 1940 U.S. App. LEXIS 4833

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 6, 1940
• Docket: 7394
• Status: Published

Opinions

EDGERTON, Associate Justice.

Appellant Balinovic sued the Evening Star on the theory that its delivery truck, negligently driven by its driver, injured him in a collision. The question is whether the District Court was right in directing a verdict for the defendant because the driver had left his route, and his work of delivering papers, and was chasing a traffic violator at the command of a policeman who jumped on the running board and stayed there.

The accident occurred on June 23, 1933, before the passage of the statute which imposes liability on the owner of a car for the acts of any person who drives it with his consent,¹ and the mere fact that the Star had entrusted its car to its driver did not make it liable.²

Appellant urges that when an agent is sent out in charge of a car he is “impliedly authorized” by his principal to aid in law enforcement at the command of a policeman. This comes to saying that he may assume that his principal, if present, would authorize the act. That depends upon the principal’s disposition, the agent’s knowledge of it, and the other circumstances. Perhaps sympathy with law enforcement may be imputed to a newspaper. Perhaps this extends to a willingness to interrupt delivery of papers and risk damage to truck, driver and public in order to chase a criminal. But the fact remains that the Star’s business is not chasing criminals but producing and selling papers. When its driver set out to catch a criminal he was doing the work of the District of Columbia.³

When B, for his own purposes, borrows, controls, and directs A’s driver, B is responsible for the driver’s negligence⁴ and A is not. An express authori'zation from an employer to his employee to do another’s work under another’s direction does not make the employer responsible for the employee’s negligence in doing the work;⁵ and no implied authorization can be more effective than an express one. “The master’s responsibility cannot be extended beyond the limits of the master’s work.” Whose work it is depends on “who has the power to control and direct the servants in the performance of their work.”⁶

Governmental immunity of the borrower does not subject the lender of the- servant to liability. In Denton v. Yazoo & Mississippi Valley R. R. Co.⁷ the plaintiff was injured by the negligence of a porter who was loading mail in a railr road car under the direction of a United States postal clerk. The porter was an employee of the railroad, hired and paid by it; but the Supreme Court held that the railroad was not liable. It said: “When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former.”⁸ There, as here, the man alleged to have acted negligently was an employee of a private corporation. There the fact that he was doing public work under the direction of a public officer insulated the corporation from responsibility. A fortiori the same fact insulates the corporation here; for chasing criminals is more remote from the Star’s work than loading mail was from the railroad’s work. The railroad regularly carried mail It regularly furnished men to load it. It was paid for doing so. It directed its porter to do the very work which he was doing when he injured the plaintiff. The Star, on the other hand, did not regularly participate in any direct way in the enforcement of the criminal law, was not paid to do so, and did not direct its driver to do so.

We need not decide whether the Star was obligated to furnish to the District a car and a man for use in catching criminals. Even if it was, it was not responsible to other persons for the man’s negligence in doing the work. The railroad in the Denton case was obligated' to furnish to the United States a car and a man for use in loading mail, and the Supreme Court held, unanimously, that the railroad was not responsible to other persons for the man’s negligence in doing the work. It is true that the railroad’s duty was created by a contract and the Star’s supposed duty was not. But we know of no reason why a duty which is independent of contract should extend responsibility for negligent injury of bystanders farther than a duty which results from contract. It is urged that it was part of the Star’s business, in the circumstances of this case, to supply equipment and man power to the government This can be true only if the word business is used in an unusual and extended sense. And in the circumstances of the Denton case it was part of the railroad’s business to supply equipment and man power to the government, not only in such senses as can be urged here with respect to the Star but in the further senses that the railroad did so constantly and did so for profit. It is urged that it was the driver’s duty not only to the public, but to the Star, to submit to the policeman’s order. Even if that were true, it would not make the Star liable. In the Denton case it was the porter’s duty to the railroad to submit to the postal clerk’s order.

In the light of the Denton case we need not discuss at length Babington v. Yellow Taxi Corporation,⁹ on which appellant relies. There a cab company’s driver was killed while chasing a criminal on the order of a policeman, and the New York court sustained an award of compensation against the company. The cab, unlike the Star’s truck, was subject to call for any lawful journey. Moreover, the limits of workmen’s compensation and of tort liability are not necessarily identical. The Star, by putting the driver on the road and keeping him there, did not create the risk that the criminal-catching activities of the District would injure a bystander. Whether it created the risk that those activities of the District would injure the driver, with the result that an injury to him in the course of those activities might be regarded as arising out of and in the course of his employment by the Star, is a question which we need not decide.

Affirmed.

1 D.C.Code, Supp. V, Tit. 6, § 255b.

²

Peabody v. Marlboro Implement Co., 63 App.D.C. 288, 72 F.2d 81, certiorari denied, 293 U.S. 601, 55 S.Ct. 118, 79 L.Ed. 693.

3 It has been held repeatedly that one who helps a municipal officer, at his command or request, in pursuing criminals becomes for the moment a municipal employee, and if injured can recover compensation as such provided there is a compensation act which covers municipal employees. Monterey County v. Industrial Accident Comm., 199 Cal. 221, 248 P. 912, 47 A.L.R. 359; Village of West Salem v. Industrial Comm. of Wisconsin, 162 Wis. 57, 155 N.W. 929, L.R.A.1918C, 1077; Vilas County v. Industrial Comm. of Wisconsin, 200 Wis. 451, 228 N.W. 591; Mitchell v. Industrial Comm. of Ohio, 57 Ohio App. 319, 13 N.E.2d 736.

4 Phelps v. Boone, 62 App.D.C. 308, 67 F.2d 574, certiorari denied, 291 U.S. 677, 54 S.Ct. 528, 78 L.Ed. 1065.

Whether the government should be responsible, as a private employer would be, in such cases as this, is for Congress to decide.

5 Western Marine & Salvage Co. v. Ball, 59 App.D.C. 208, 37 F.2d 1004, certiorari denied, 281 U.S. 749, 50 S.Ct. 353, 74 L.Ed. 1161.

6 Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 222, 29 S.Ct. 252, 254, 53 L.Ed. 480.

When cars are loaned gratuitously, “the tendency is to hold that the chauffeur becomes the servant of the borrower.” 42 A.L.R. 1446.

7 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310.

8 284 U.S. at page 308, 52 S.Ct. at page 142, 76 L.Ed. 310.

9 250 N.Y. 14, 164 N.E. 726, 61 A.L.R. 1354.