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Good v. Berrie 196

Cowan v. Eastern Racing Ass’n 198

COWAN 198

v. 198

EASTERN RACING ASS'N, INC. 198

Supreme Judicial Court of Massachusetts, Suffolk. 198

Argued Nov. 6, 1952. 199

Decided April 7, 1953. 199

*136 COUNIHAN, Justice. 199

This is an action of tort to recover for an assault on the plaintiff by certain persons alleged to be agents or employees of the defendant when the plaintiff was a business invitee of the defendant at Suffolk Downs, a race track in Boston, owned by the defendant. The answer was a general denial, and by amendments there were special answers in the first of which the defendant denied that the assault was committed by the defendant, its agents or servants or by any one acting in behalf of the defendant, and further set up that if there was any assault on the plaintiff it was committed by two police officers of the city of Boston acting in their own defence and in the public interest; and the second set up that the defendant at the time of the assault was acting as an agent for the National War Fund, Inc., an established charitable organization, in the conduct of the racing meeting on the day of the assault and that all profits derived from such meeting were turned over to the National War Fund, Inc., and other local charitable *137 organizations without any benefit or profit to the defendant. 199

This action was tried to a jury together with two other actions against the police officers who were involved in the assault. [FN1] The jury returned verdicts against all three defendants. 199

FN1. Cowan v. McDonnell [Cowan v. Ingenere], Mass., 111 N.E.2d 759. 199

This action comes here upon exceptions of the defendant to the denial of its motion for a directed verdict; to the denial of fourteen requests for rulings; to five portions of the judge's charge; and to the admission of evidence. 199



For a better understanding of the issues here presented we deem it appropriate to direct attention to certain statutes and to certain rules of the State racing commission made by virtue of one of said statutes. General Laws (Ter.Ed.) c. 6, § 48, inserted by St.1934, c. 374, § 2, as amended by **754 St.1941, c. 596, § 3, provides for the appointment of a State racing commission, hereinafter called the commission. General Laws (Ter.Ed.) c. 128A, inserted by St.1934, c. 374, § 3, as amended in certain respects not here material, legalizes horse and dog racing meetings in this Commonwealth and permits wagering on the results under the pari-mutual or certificate system at racing meetings licensed by the commission under c. 128A, § 3, as amended. Section 7 provides for the appointment of one or more representatives to attend each racing meeting to observe and report to the commission any violations of c. 128A. Section 8 reads: 'The commission may apply to the local police authorities for, and said authorities shall thereupon assign, such number of police officers to be on duty at any racing meeting * * * as the commission may deem proper. Police officers so assigned shall report to the commission and shall perform such duties as may be required by the commission. The licensee shall pay to the commission a sum equal to the salaries of police officers so assigned * * *.' (Emphasis supplied.) Section 9 reads: 'The commission shall have full power to prescribe rules, regulations and conditions under *138 which all horse or dog races at horse or dog racing meetings shall be conducted in the commonwealth. * * *' Rule 21 of these rules which were in evidence designates certain officials of a racing meeting, in which are included three stewards, and a clerk of the scales. Rule 22 provides that all such officials shall be appointed by the licensee 'subject to the approval of the Commission, which reserves the right to demand a change of personnel for what it deems good and sufficient reasons * * *.' Rule 22(A) provides for the appointment of a 'Commission Steward who shall daily report his observations to the Commission.' (Apparently this steward is the representative referred to in § 7 of c. 128A. He was not involved in the assault.) Rule 22(B) by inference provides that the salaries of all officials appointed by the licensee shall be paid by such licensee. Rule 25 provides that the stewards shall have general supervision over owners, trainers, jockeys, grooms, and other persons attendant on horses, and all other officials of the meeting. Section 27 reads: 'All questions pertaining directly to racing, arising during the period of the meeting, shall be determined by the Stewards * * *.' Section 34 reads: 'The Stewards shall have control over and free access to all stands * * * enclosures, and other places in use for the purpose of racing.' Rule 42 reads in part: 'in matters pertaining to racing the orders of the Stewards supersede the orders of the officials of the Association' (the licensee). Rule 43 reads: 'The Stewards shall keep a record of all complaints made to them and the disposition thereof and shall furnish a copy of same to the commission.' Rule 44 reads: 'The Stewards shall take notice of corrupt riding and other questionable transactions on the turn. Complaint thereof can be made by any person * * *.' (Emphasis supplied.) 199

From evidence disclosed in the bill of exceptions considered in its aspect most favorable to the plaintiff the jury could reasonably have found the following facts: On August 11, 1945, the plaintiff, with his wife and her daughter, was in attendance at Suffolk Downs, a race track owned by the *139 defendant. They all paid the required admission fees. A racing meeting was being held under a license granted by the commission. A license had been originally issued to the defendant to conduct a racing meeting for fifty-four days beginning June 11, 1945, and ending August 11, 1945, except Sundays. Following a written request to it from the National War Fund, Inc., an established charitable organization, the defendant petitioned the commission to transfer that part of the license for the last four days of such meeting to the National War Fund, Inc., with the defendant acting as its agent. These days were from August 8 to August 11, 1945, inclusive. On August 1, 1945, the commission voted to approve the transfer of the license of the defendant for these days to the 'National War Fund, Inc.--Eastern Racing Association, Inc. Agent.' The net proceeds of these four days of racing were substantially paid to the National War **755 Fund, Inc., and certain other local charities. 200



The plaintiff bought a $10 ticket on a horse called 'Johnny, Jr.,' to win in the seventh race. This horse finished first by a length and the plaintiff noticed nothing wrong in the manner in which the race was run. As he went to collect on his ticket he heard loud 'hollering' and he learned that a foul had been claimed. Subsequently the race was declared official and it appeared that 'Johnny, Jr.,' was placed third so that the win ticket was of no value. The plaintiff became excited and upset, and sought information, without success, at the window where he bought the ticket, as to why his horse was disqualified. He than talked with the clerk of the scales. As 'a result of that conversation' he went across the track to the stewards' stand. To get there he had to climb over an iron fence four and one half feet in height and cross the rece track. The stand which was on the other side of the track opposite the grandstand looked as if it was 'on stilts with stairs going around and up.' It was enclosed by glass. The plaintiff walked up the circular stairway and entered a room about eighteen feet by nine feet in size. He saw there one Almy, one Conway, and one Conkling who is also called Conklin in the bill of exceptions. *140 These three men were the stewards appointed by the defendant under Rule 22 of the rules of the commission and had been acting as such during the earlier days of the meeting as well as from August 8 to August 11, 1945, inclusive. The plaintiff put his ticket on 'Johnny, Jr.,' on a table in front of Almy and asked him why that horse had been disqualified from winning. Almy told him that he would talk with him after he had finished making out a report which he was then writing. The plaintiff waited for two or three minutes and then spoke to Almy again. He made no attempt to strike anybody and there was no loud talk. While he was standing at the table talking to Almy, Conkling walked up to the plaintiff and kicted him in the 'shins.' Conkling then beckoned to the police and two officers came into the room. He said to them, 'Throw the son of a bitch out.' They were the defendants in the actions tried with this action. They grabbed the plaintiff from behind and, as he struggled to get away, they beat him many times on his head and body with their billies. The plaintiff fell to the floor where he was beaten again and kicked by the police officers. The plaintiff was brutally assaulted. He suffered severe injuries, was bleeding profusely from his head, and as a result was taken to the Boston City Hospital for treatment. The police officers were part of a detail of the Boston police department on duty at Suffolk Downs under a Lieutenant O'Brien. The commission did not hire or pay the police although it could have because the commission had such power under the statute but it never exercised it. There was no direct evidence as to who hired the police but it could be fairly inferred that they were hired by the defendant because a check in payment for their services in the sum of $1,368 was drawn to the order of the police commissioner (of Boston) and signed 'Eastern Racing Assn. Inc. Agents for National War Fund, Inc.,' by its officers. This check was indorsed by the police commissioner. The three stewards in the stand were appointed by the defendant or by it at least as agent for the National War Fund, Inc., and were paid by checks of the 'Eastern Racing Assn. Inc. Agents for National War *141 Fund, Inc.' The defendant appointed and paid these stewards and had a right to discharge them. 200

We first consider the defendant's exception to the denial of its motion for a directed verdict. The disposition of this exception depends largely upon the application of the principle of respondeat superior, and we must therefore determine whether the steward Conkling or the police officers who were involved in the assault were at that time in the control of the defendant and acting as its agent or agents within the scope of their employment. 201

The principle respondeat superior is not applicable unless it could reasonably be found on the evidence together with all permissible inferences 'that the **756 relation of master and servant existed at the time the plaintiff was injured, whereby the * * * act of the servant was legally imputable to the master. The test of the relationship is the right to control. It is not necessary that there be any actual control by the alleged master to make one his servant or agent, but merely a right of the master to control. If there is no right of control there is no relationship of master and servant. If the power of control rests with the person employed, he is an independent contractor.' Khoury v. Edison Electric Illumination Co., 265 Mass. 236, 238, 164 N.E. 77, 78, 60 A.L.R. 1159. 201

This is the rule in this Commonwealth and is generally accepted in other jurisdictions. Restatement: Agency, § 220. Meechem on Agency (2d ed.) § 1863. 57 C.J.S., Master & Servant, § 563. 35 Am. Jur., Master & Servant, § 539. This rule is applicable although the choice of persons for the particular work is required to be made from a limited class. Restatement: Agency, § 223. 202

In the Khoury case it was also said 265 Mass. at page 239, 164 N.E. at page 78, 'Although the conclusive test of the relationship of master and servant is the right to control, other factors may be considered in determining whether the right to control exists, but they are subordinate to this primary test. This court has held that the method of payment is not the decisive test. * * * Neither is the fact that * * * [one] was an employee of the defendant and had no other employment decisive, for a person *142 may be an agent or a servant as to one part of an undertaking, and an independent contractor as to other parts.' To the same effect is Wescott v. Henshaw Motor Co., 275 Mass. 82, at page 87, 175 N.E. 153, at page 155, where it is said, 'It has been frequently decided that one may be the agent or servant of another in some matters and not the agent or servant in other matters.' Likewise 'it is the right to control rather than the exercise of it that is the test. * * * While engaged in the same general work, one may be at certain times and for certain purposes the servant of a party, and at other times or for other purposes an independent contractor or the servant of another.' McDermott's Case, 283 Mass. 74, 77, 186 N.E. 231, 233, and cases cited. 202

Where more than one conclusion is possible the question is for the jury. Marsh v. Beraldi, 260 Mass. 225, 231, 157 N.E. 347. 'The inferences which should be drawn from the evidence as to the relations of * * * [one to another] and to the defendant, were not matters of law as the defendant contends, but questions of fact to be decided by the jury under suitable instructions.' Cain v. Hugh Nawn Contracting Co., 202 Mass. 237, 239, 188 N.E. 842. It was also said in Choate v. Board of Assessors of Boston, 304 Mass. 298, at page 300, 23 N.E.2d 882, at page 884, 'The existence of the relationship of principal and agent and the authority of the latter to represent the former are questions of fact if there is evidence of an appointment by the principal and a delegation to the agent of duties to be performed by him for the principal, or if the conduct of the parties is such that an inference is warranted that one was acting in behalf of and with the knowledge and consent of another.' 202

In the instant case we are of opinion that one of two conclusions could be found by the jury as matter of fact on the evidence. The first one is that in determining the qualifications of horses and jockeys, corrupt riding, questionable practices such as the artificial stimulation of horses, the weights of jockeys, fouls, and the order in which horses finish, the stewards appointed and paid by the defendant had exclusive jurisdiction, and that when acting upon such matters these stewards could be found to be agents of the *143 commission or independent contractors required to be employed by the defendant under the rules of the commission. On the other hand, on the evidence the jury could reasonably find that at the time of this assault the steward Conkling was acting as an agent for the defendant even though the rules of the commission provide that the stewards appointed by the defendant shall have control over and free access to all stands. 202

**757 The plaintiff was a business invitee of the defendant, at least in its capacity as an agent for the National War Fund, Inc. Whether he was properly in the stewards' stand to make a complaint is of no consequence for excessive force was used to evict him. While talking to one of the stewards about the complaint, Conkling assaulted him and calling the police, by the use of opprobrious words, told them to throw the plaintiff out of the stand. A struggle ensued and a brutal assault followed. Conkling was appointed and paid by the defendant. The stand where the assault took place was owned by the defendant. Conkling apparently assumed that the plaintiff was an interloper and causing a disturbance. Conkling and the other stewards under the rules had control of the stand and presumably had authority to evict obnoxious persons from it and that was for the purpose of seeing to it that racing was orderly conducted. Proper performance of their duty in this respect could reasonably be expected to enhance the reputation of the defendant with its customers for maintaining order and advance its business which was to conduct racing for a profit. If they failed to perform their duties in this respect, the defendant could discharge them. To this extent at least it could be found that the defendant had a right to control them. 203

It is not unreasonable to assume that Conkling believed that to preserve order in the stand he had a right to call upon the police to assist him. Otherwise there was no need of the presence of the police at the stand. It is clear therefore that if Conkling assaulted the plaintiff, or if the police at his instigation were guilty of the assault, the defendant *144 could be found liable. 'An inference of responsibility on the defendant's part was by no means the only permissible inference, but we think that it was a possible one.' Hartigan v. Eastern Racing Association, Inc., 311 Mass. 368, 371, 41 N.E.2d 28, 30. 203

But apart from the question of agency of Conkling and the responsibility of the defendant for his conduct, we are of opinion that the question whether the police officers involved in the assault were acting as agents of the defendant was also for the jury to decide. They were paid by the defendant and they were hired by the defendant for the obvious purpose of preserving and maintaining order on the premises of the defendant during the racing meetings. The maintenance of such order, the prevention of breaches of the peace, with the possibility of ensuing riots, would serve to afford protection to and avoid damage to the physical plant used for racing, which was conceded to be owned by the defendant. In this capacity the police officers were acting not as public officers in a public place but as employees of the defendant for its private purposes on its private premises. It is also reasonable to assume that part of their duty was to prevent annoyance or injury to patrons of the defendant and to that end they could evict from any part of the premises persons who might be causing a disturbance. 'Acts habitually performed by an agent may import acquiescency by the principal and become evidence of his authority.' Hartigan v. Eastern Racing Association, Inc., 311 Mass. 368, 370, 41 N.E.2d 28, 30, and cases cited. 203

We are of opinion that this action was properly submitted to the jury, and the exception of the defendant to the denial of its motion for a directed verdict must be overruled. 203

The defendant has argued that it is not responsible for the brutal assault on the plaintiff by Conkling or the police officers because none of them was acting within the scope of his employment when they assaulted the plaintiff. There is no merit in this contention. The case of Perras v. Hi- Hat, Inc., 326 Mass. 78, 93 N.E.2d 219, cited by the defendant, is readily distinguishable. The police officers there involved in an assault were in no sense employees of the defendant. The *145 question of the use of excessive force did not arise for agency alone was considered. The correct rule is stated in Fanciullo v. B. G. & S. Theatre Corp., 297 Mass. 44, at pages 46- 47, 8 N.E.2d 174, at page 176, with cases cited this court said, 'In a place of public amusement where large numbers of people are accustomed to gather, the maintenance **758 of order may incidentally require the use of force. * * * A master not infrequently may be liable for conduct of a servant who uses means not intended or contemplated by the contract of employment.' This rule is recognized in Restatement: Agency, § 245, 'A master who authorizes a servant to perform acts which involve the use of force against persons or things, or which are of such a nature that they are not uncommonly accompanied by the use of force, is subject to liability for a trespass to such persons or things caused by the servant's unprivileged use of force exerted for the purpose of accomplishing a result within the scope of employment.' See Hirst v. Fitchburg & Leominster Street Railway, 196 Mass. 353, 82 N.E. 10; Mason v. Jacot, 235 Mass. 521, 127 N.E. 331; Frewen v. Page, 238 Mass. 499, 131 N.E. 476, 17 A.L.R. 134; Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421, 134 N.E. 385; Hartigan v. Eastern Racing Association, Inc., 311 Mass. 368, 41 N.E.2d 28; McDermott v. W. T. Grant Co., 313 Mass. 736, 49 N.E.2d 115; Schultz v. Purcell's, Inc., 320 Mass. 579, 70 N.E.2d 526. 203

We are of opinion, however, that in several respects the charge of the judge was inadequate, misleading, and prejudicial, and for these reasons the exceptions of the defendant to the charge must be sustained. This action was tried with the other actions against the police officers involved in the assault. The charge necessarily should have treated with the liability of the defendant as a principal and the liability of the police officers as individuals. Nowhere in the charge is this distinction pointed out and no instruction was given the jury that the defendant would not be liable unless it had the right to control the steward Conkling or the police officers. In fact the judge told the jury that the defendant 'had control of the personnel; their stewards were there, the same stewards that conducted the other *146 50 days of the race meeting. There was no change.' If by this the judge meant that these stewards were in the control of the defendant, he was wrong because this was not a matter for the judge to decide, for the question of agency was for the jury to pass on under suitable instructions. The judge was likewise in error in that part of the charge in which he dealt with the question of control of the stewards' stand. He emphasized the fact that the defendant owned all of the premises and for that reason exercised control over them. We assume without deciding that the question of control of premises in some circumstances may, with suitable instructions, have some bearing upon the liability of the defendant in a case like this. But the real question here to be determined by the jury was the right of the defendant to control Conkling or the police officers. Proper instructions to this effect were omitted. The charge also stressed the point that the defendant paid Conkling and the police officers. This is not decisive on the question of the right to control them. It only has a bearing on the right to control and that was not discussed in the charge. The question of the responsibility of the defendant for the conduct of Conkling or the police officers was not submitted to the jury with adequate instructions. 204

In view of what we have said, we need not consider the first eleven requests of the defendant. 204

The last three requests relate to the contention of the defendant that in no event was it liable because it was acting as an agent of a charitable enterprise when the assault occurred. This point is not discussed in the defendant's brief other than casually with no citation of authority. City of Boston v. Dolan, 298 Mass. 346, 355, 10 N.E.2d 275. In any event there is no merit in this contention. It still remained a question for the jury to decide who had the right to control Conkling or the police officers. In Barnard v. Coffin, 141 Mass. 37, at page 41, 6 N.E. 364, at page 367, this court said, 'if the agent, having undertaken to do the business of his principal, employs a servant or agent on his own account to assist him in what he has undertaken, such a subagent is an agent of the agent * * *.' *147 See Pease v. Parsons, 273 Mass. 111, 118, 173 N.E. 406; Moran v. Plymouth Rubber Co. Mutual Benefit Association, 307 Mass. 444, 446, 30 **759 N.E.2d 238. Compare Reavey v. Guild of St. Agnes, 284 Mass. 300, 187 N.E. 557. 205

We have examined the defendant's exceptions to the admission of evidence and find it necessary to discuss but one of them; others either are without merit or relate to matters not likely to arise on a retrial of the case. The one which concerns us relates to the admission of testimony as to the existence of a liability policy at the time of the assault indemnifying the defendant as agent for the National War Fund, Inc., against claims for personal injury arising on the property of the defendant used in the conduct of racing meetings. When this evidence was admitted nothing was said about the purpose of such evidence and no limitation was put upon its applicability. From the charge of the judge it is apparent that it was admitted to show control of the stewards' stand by the defendant. 205

This exception must be sustained. 205

It was said in Minkkinen v. Nyman, 325 Mass. 92, at page 95, 89 N.E.2d 209, at page 210: 'The policy in question, which was offered solely on the issue of control, was a blanket policy covering the entire premises and not merely the apartment which the plaintiff was entering * * *. The policy, among other things, contained a provision whereby the insurer undertook to defend the insured against any actions for personal injuries arising out of the ownership, maintenance or use of the premises, including actions which were groundless. Since there was ample scope for the operation of the policy apart from liability for defects in the steps where the plaintiff was injured, the existence of such insurance would not constitute an admission on the part of the defendants that they had retained control of the steps.' Calabresa v. Lynch, 271 Mass. 58, 61, 170 N.E. 812. Salsman v. Frisch, 276 Mass. 228, 230, 177 N.E. 7. Hannon v. Schwartz, 304 Mass. 468, 470, 23 N.E.2d 1022. Perkins v. Rice, 187 Mass. 28, 72 N.E. 323, relied upon by the plaintiff, is distinguishable. The Minkkinen case and those cases cited in it appear to us to be decisive on the insurance point. 205

Exceptions sustained. 205

Doody v. John Sexton & Company 206

Daniel A. DOODY, Plaintiff, Appellee, 206

v. 206

JOHN SEXTON & COMPANY, Defendant, Appellant 206

No. 7233 206

United States Court of Appeals First Circuit 206

May 27, 1969. 206

COFFIN, Circuit Judge. 206

The defendant, John Sexton & Co., a merchandising company having head offices in Chicago, and doing business in a number of states, employed plaintiff Doody in its Boston office. Taking the evidence as it developed in the district court most favorable to the plaintiff, at a conference in Chicago two of defendant's officers promised plaintiff lifetime employment in defendant's Los Angeles office if he would move to California. Plaintiff did move, but found himself out of phase with the manager there, who placed substantially different conditions upon his employment than, allegedly, he had been promised. When plaintiff complained, one of defendant's officers told him that he would have to like it or quit. Plaintiff reminded the officer of his Chicago promise and asked if he had been 'kidding'. The officer replied *1121 in the affirmative. Plaintiff quit and returned to Boston. There was evidence that his out-of-pocket loss as a result of this venture was $15,000 206

Plaintiff's suit in the district court was in three counts. Count 1 was for breach of contract; Count 2 for the fair value of his services; Count 3 for fraudulent misrepresentation. The court directed a verdict for the defendant on Count 1 on the ground that the officers had no real or apparent authority to promise lifetime employment, a decision which plaintiff accepts for this appeal as correct. It also directed a verdict on Count 2, also without objection by the plaintiff. It refused to direct on Count 3, and the jury found for the plaintiff in the amount of $15,000. Defendant appeals 206

The appeal presents only two questions which give us concern. The first is what law governs the question whether the officers' promise with, as could be found, no intent to perform, was actionable. This question arises because, allegedly, what, in Massachusetts is regarded as an actionable misrepresentation of a present intention, [FN1] is not actionable in Illinois. [FN2] 206

FN1. It is the general rule in Massachusetts that statements promissory in nature are not actionable. See, e.g., Pepsi-Cola Metropolitan Bottling Co. v. Pleasure Island, Inc., 345 F.2d 617, 622 (1st Cir. 1965); Saxon Theatre Corp. of Boston v. Sage, 347 Mass. 662, 200 N.E.2d 241 (1964); Yerid v. Mason, 341 Mass. 527, 170 N.E.2d 718 (1960). There is, however, an exception, applicable to this case, where it appears that the promissor did not intend to carry out the promise. Barrett Associates, Inc. v. Aronson, 346 Mass. 150, 190 N.E.2d 867 (1963); Feldman v. Witmark, 254 Mass. 480, 481-482, 150 N.E. 329 (1926); Dubois v. Atlantic Corp., 322 Mass. 512, 78 N.E.2d 185 (1948). 206

FN2. Illinois is one of the minority of jurisdictions which does not permit recovery in tort for promissory statements even if, when made, there was no intention to perform. Repsold v. New York Life Ins. Co., 216 F.2d 479 (7th Cir. 1954); Stahly, Inc. v. M. H. Jacobs Co., 183 F.2d 914 (7th Cir. 1950); Brodsky v. Frank, 342 Ill. 110, 173 N.E. 755 (1930); Keithley v. Mutual Life Ins. Co., 271 Ill. 584, 111 N.E. 503 (1916). This does not mean, however, that the injured recipient of such a promise is without a remedy. He may sue on the promise-- either on a contract theory, Gage v. Lewis, 68 Ill. 604 (1873), or on the allied doctrine of promissory estoppel. Bredemann v. Vaughn Mfg. Co., 40 Ill. App.2d 232, 188 N.E.2d 746 (1963). 206

We look at the Massachusetts conflict rule, Massachusetts being the present forum. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Sampson v. Channell, 110 F.2d 754, 128 A.L.R. 394 (1st Cir. 1940). Under Massachusetts law the doctrine of lex loci delicti ordinarily governs actions of tort. Reed & Barton Corp. v. Maas, 73 F.2d 359 (1st Cir. 1934). In applying the lex loci doctrine, Massachusetts follows the rule of the Restatement that 'the place of the wrong is the state where the last event necessary to make an actor liable for an alleged tort takes place.' Restatement of the Law, Conflict of Laws § 377 (1934). Strogoff v. Motor Sales Co., Inc., 302 Mass. 345, 347, 18 N.E.2d 1016 (1939). Since reliance is necessary to the imposition of liability for misrepresentation, Brockton Olympia Realty Co. v. Lee, 266 Mass. 550, 165 N.E. 873 (1929); Butler v. Martin, 247 Mass. 169, 142 N.E. 42 (1923), it is apparent that the alleged tort was completed in Massachusetts where the plaintiff as contemplated by the statements, gave up his Massachusetts employment and suffered his original loss. We believe, therefore, that a Massachusetts court could apply its own law. [FN3] 207

FN3. Defendant places great emphasis on Bradbury v. Central Vermont Railway, 299 Mass. 230, 12 N.E.2d 732 (1938). It is true that the language of that opinion provides some support for applying the law of the place where the misrepresentation was made, but we think it significant that in Bradbury the misrepresentation and the plaintiff's loss both occurred in Vermont. Moreover, Strogoff v. Motor Sales, Inc., supra, was decided after Bradbury. In Strogoff, the Massachusetts Supreme Judicial Court cited § 377 of the Restatement with approval, and we have no basis for doubting that the Massachusetts courts would follow § 377(4) which provides that: 207

'When a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations were made.' 207

*1122 This frees us of the obligation to pursue a question of Illinois law, namely, whether by its own conflict rules it, too, would look to the place of principal impact and apply the Massachusetts substantive law even though, under the Illinois cases cited by defendant, there would have been no Illinois recovery for misrepresentation had the activity been confined exclusively to that state. We accordingly hold that there was, or could be found to be, an actionable misrepresentation 207

The remaining question is whether, assuming that defendant cannot be liable in contract for the unauthorized undertaking of its agents, it can be held liable in tort. Defendant says, with some appearance of plausibility, that tort liability would be illogical, and merely open the back door when the front door was closed 207

We note first, however, that the liability that plaintiff is attempting to impose upon the defendant is not responsibility for the loss of the contract, but only for the proximate consequences of the officers' wrongful act. The officers were hiring agents, within limits, and it is common experience for a principal to be held accountable in tort for unauthorized acts of an agent not too far removed from the scope of his authority, even though, strictly, they were not authorized. In this case plaintiff does not need to rely simply on the general principle; there is a Massachusetts case closely in point. In Robichaud v. Athol Credit Union, 352 Mass. 351, 225 N.E.2d 347 (1967), a representative of the defendant lender who had authority to deal with such matters, told the borrower that his loan was covered by life insurance under defendant's group policy. In point of fact the loan was for 15 years and a Massachusetts statute did not permit insurance on loans over 10. The court held defendant liable for misrepresentation (in that case the full amount of the insurance) 'even if furnishing insurance would have been beyond the defendant's power.' 352 Mass. at 355, 225 N.E.2d at 350. The only question appeared to be the closeness of the agent's relationship to the act in question 207

The defendant's officers in the case at bar were its president and vice president, who clearly possessed certain hiring powers. We think it could be found that plaintiff had a right to rely on their representations even though their actual authority did not extend to the point they indicated 208

We do not consider the remaining points made by defendant concerning the conduct of the trial. They were either not preserved, or without merit, or both 208

Affirmed. 208



Mullen v. Horton 208

Gizzi v. Texaco 218

United States Court of Appeals, Third Circuit. 219

Augustine GIZZI, Appellant, and Anthony Giaccio 219

v. 219

TEXACO, INC., Appellee. 219

Appeal of Anthony GIACCIO. 219

Nos. 18976, 18977. 219

Argued Oct. 27, 1970. 219

Decided Jan. 20, 1971, Rehearing Denied March 8, 1971. 219

OPINION OF THE COURT 219

GERALD McLAUGHLIN, Circuit Judge. 219

The question posed on this appeal is whether the trial judge properly granted appellee Texaco's motion for a directed verdict in this personal injury action. Jurisdiction in the district court was based on diversity of citizenship and requisite amount in controversy. 219

Appellant Augustine Gizzi was a steady patron of a Texaco service station located on Route 130 and Chestnut *309 Street, Westville, New Jersey. The real estate upon which the station was situated was owned by a third party and was leased to the operator of the station, Russell Hinman. Texaco owned certain pieces of equipment and also supplied the operator with the normal insignia to indicate that Texaco products were being sold there. 219

In June of 1965, the station operator, Hinman, interested Gizzi in a 1958 Volkswagen van, which Hinman offered to put in good working order and sell for $400. Gizzi agreed to make the purchase and Hinman commenced his work on the vehicle. The work took about two weeks and included the installation of a new master braking cylinder and a complete examination and testing of the entire braking system. On June 18, 1965 Gizzi came to the station and paid the $400. He was given a receipt for the payment and was told that the car would be ready that evening. Gizzi returned at about six o'clock, accompanied by appellant Anthony Giaccio. They took the van and then departed for Philadelphia, Pennsylvania, to pick up and deliver some air-conditioning equipment. While driving on the Schuylkill Expressway, Gizzi attempted to stop the vehicle by applying the brakes. He discovered that the brakes did not work and, as a result, the vehicle collided with the rear end of a tractor trailer causing serious injuries to both Gizzi and Giaccio. 219

Texaco, Inc. was the only defendant named in the complaint and at trial, the testimony was all directed to the corporation's liability, the court having asked for an offer of proof on that question. 219

With regard to the sale of this vehicle, no actual agency existed between Texaco and Hinman. Although most of the negotiations involved in the transaction took place at the Texaco station, the record indicates that Hinman was selling the van on his own behalf, and not on behalf of Texaco. Texaco received no portion of the proceeds. The corporation was not designated the seller on the bill of sale, title to the vehicle being listed in the name of a company located in Atlantic City, New Jersey. Gizzi did receive a Texaco credit invoice as a receipt for the cash he paid. It would seem that this was an available convenience utilized by Hinman to record the transaction. 219

The repair work performed by Hinman was incidental to the sale of the vehicle. He offered to put the vehicle into good working order to further induce Gizzi to purchase it. Some work was done on the van after the money had been paid on June 18 and all work on the braking system was completed prior to that date. 220

The theory of liability advanced by appellants below was that Texaco had clothed Hinman with apparent authority to make the necessary repairs and sell the vehicle on its behalf and that Gizzi reasonably assumed that Texaco would be responsible for any defects, especially defects in those portions of the van which were repaired or replaced by Hinman. It was further contended that Gizzi entered into the transaction relying on this apparent authority, thereby creating a situation in which Texaco was estopped from denying that an agency did in fact exist. 220

The concepts of apparent authority, and agency by estoppel are closely related. Both depend on manifestations by the alleged principal to a third person, and reasonable belief by the third person that the alleged agent is authorized to bind the principal. The manifestations of the principal may be made directly to the third person, or may be made to the community, by signs or advertising. Restatement (Second), Agency §§ 8, 8B, 27 (1957). In order for the third person to recover against the principal, he must have relied on the indicia of authority originated by the principal, Bowman v. Home Life Ins. Co. of America, 260 F.2d 521 (3 Cir. 1958); Restatement (Second), Agency 267 and such reliance must have been reasonable under the circumstances. N. Rothenberg & Son, Inc. v. Nako, 49 N.J.Super. 372, 139 A.2d 783 (App.Div.1958); *310 Hoddeson v. Koos Bros., 47 N.J.Super. 224, 135 A.2d 702 (App.Div.1957); Mattia v. Northern Ins. Co. of New York, 35 N.J.Super. 503, 114 A.2d 582 (App.Div.1955); Elger v. Lindsay, 71 N.J.Super. 82, 176 A.2d 309 (County Court 1961). 220

In support of their theory of liability, appellants introduced evidence to show that Texaco exercised control over the activities of the service station in question. They showed that Texaco insignia and the slogan 'Trust your car to the man who wears the star' were prominently displayed. It was further established that Texaco engaged in substantial national advertising, the purpose of which was to convey the impression that Texaco dealers are skilled in automotive servicing, as well as to promote Texaco products, and that this advertising was not limited to certain services or products. The record reveals that approximately 30 per cent of the Texaco dealers in the country engage in the selling of used cars and that this activity is known to and acquiesced in by the corporation. Actually Texaco had a regional office located directly opposite the service station in question and Texaco personnel working in this office were aware of the fact that used vehicles were being sold from the station. It was further established that there were signs displayed indicating that an 'Expert foreign car mechanic' was on the premises. 220

Appellant Gizzi testified that he was aware of the advertising engaged in by Texaco and that it had instilled in him a certain sense of confidence in the corporation and its products. 221

In granting Texaco's motion for a directed verdict the court stated: 221

'I am convinced that as a matter of law there could not be any apparent authority on the basis of what I heard so far or what I have had the slightest glimmer that you could show, no apparent authority on the part of this operator to bind Texaco in connection with the sale of this used Volkswagon bus * * * 221

'In short, nobody could reasonably interpret any of these slogans or representations or indicia of control as dealing with anything more than the servicing of automobiles, and to the extent of putting gas in them and the ordinary things that are done at service stations. 221

'That 'Trust your car to the man who wears the star' could not possibly be construed to apply to installing new brake systems or selling used cars.' 221

We are of the opinion that the court below erred in granting the motion. Questions of apparent authority are questions of fact and are therefore for the jury to determine. Lind v. Schenley Industries, Inc., 278 F.2d 79 (3 Cir. 1960); System Investment Corp. v. Montview Acceptance Corp., 355 F.2d 463 (10 Cir. 1966); Frank Sullivan Co. v. Midwest Sheet Metal Works, 335 F.2d 33 (8 Cir. 1964). On a motion for a directed verdict, and on appeal from the granting of such a motion, all evidence and testimony must be viewed in a light most favorable to the party against whom such motion is made and that party is entitled to all reasonable inferences that could be drawn from the evidence. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Denneny v. Siegel, 407 F.2d 433 (3 Cir. 1969). While the evidence on behalf of appellants by no means amounted to an overwhelming case of liability, we are of the opinion that reasonable men could differ regarding it and that the issue should have been determined by the jury, after proper instructions from the court. 221

For the reasons stated herein, the order of the district court will be vacated and the case remanded for further proceedings consistent with this opinion. We do not pass on the merits of any other claims advanced on this appeal, but leave them for the consideration of the district court on the remand. 221

*311 SEITZ, Circuit Judge (dissenting). 221

I would affirm the order of the district court. 221

The two plaintiffs in this case each seek to recover damages for their personal injuries, claiming that Texaco is liable under the following four theories: (1) breach of warranty with respect to the sale of the delivery van; (2) breach of warranty with respect to the repairs which were made on the van before the sale; (3) vicarious liability for Hinman's negligence in repairing the van; and (4) negligence in permitting an unqualified person such as Hinman to perform repairs at its service station. Although this diversity action was brought in the Eastern District of Pennsylvania, where the accident occurred, it is not disputed that the issue of Texaco's liability is governed by the substantive law of New Jersey. 221

Plaintiffs first claim that Hinman warranted that the van was in good running condition and had no mechanical defects; at trial, they presented evidence which indicated that Hinman expressly told them that the van was 'in A-1 shape' and that the brakes in particular were in good working order. I agree with the majority that no actual agency relationship existed between Texaco and Hinman with respect to the sale of used vehicles, but I disagree that the district court erred in granting Texaco a directed verdict on the issues of apparent agency and agency by estoppel. The following statement of New Jersey law is pertinent to the disposition of this case: 222

'One who represents that another is his agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be servant as if he were such. Restatement, Agency, par. 267. * * * This rule normally applies where the plaintiff has submitted himself to the care or protection of an apparent servant in response to an apparent invitation from the defendant to enter into such relations with such servant. A manifestation of authority constitutes an invitation to deal with such servant and to enter into relations with him which are consistent with the apparent authority.' 222

Elger v. Lindsay, 71 N.J.Super. 82, 176 A.2d 309, 312 (Law Div.1961); see N. Rothenberg & Son, Inc. v. Nako, 49 N.J.Super. 372, 139 A.2d 783 (App.Div.1958); Price v. Old Label Liquor Co., 23 N.J.Super. 165, 92 A.2d 806 (App.Div.1952). Assuming that a person of ordinary prudence would be entitled to believe that Hinman was Texaco's agent in the sale of gasoline, oil, tires, and other items which are ordinarily sold at a filling station, it does not follow that a reasonable man would believe that Hinman's apparent authority extended to the sale of used cars. Such a belief would, in my view, be unreasonable. Moreover, in the absence of an appearance of agency, Texaco's mere acquiescence in the sale cannot be said to create an agency by estoppel. Where the evidence permits only one reasonable conclusion on the issue of agency, that issue must be decided by the trial court, not the jury. Harvey v. Craw, 110 N.J.Super. 68, 264 A.2d 448 (App.Div.1970). 222

I believe that a directed verdict was equally proper on plaintiffs' second and third theories of liability, involving the repairs which Hinman performed on the van. In Wallach v. Williams, 52 N.J. 504, 246 A.2d 713 (1968), the Supreme Court of New Jersey expressly reserved decision on whether an oil company which creates the impression by signs and advertising that it operates a service station can be held liable for the negligence of an independent contractor who operates the station. The facts of the present case also make it unnecessary to decide this issue. As both the majority and the district court have indicated, the repair work was purely incidental to the sale of the vehicle. Gizzi quoted Hinman as offering not only to *312 sell the van for $400 but also to replace the master cylinder and muffler, repair the engine, repaint the vehicle, and generally 'put it in A-1 shape' at no extra charge. I agree with the district judge that, considering plaintiffs' evidence in its most favorable light, the sale was strictly a personal transaction and Hinman made the repairs in his individual capacity simply to induce the sale. Particularly since the cost of the repairs was absorbed into the overall sales price, which was payable directly to Hinman, in my view, no reasonable man could conclude that Hinman was acting as a servant or agent of Texaco. 222

Finally, I believe that a directed verdict was proper on plaintiffs' claim that Texaco negligently permitted Hinman to perform automobile repairs even though he was unqualified and incompetent to do such work. Plaintiffs' only evidence was that Texaco itself did not give Hinman any specialized training. They produced no evidence to show either Hinman's incompetence or Texaco's negligence. 222

Drumond v. Hilton Hotel Corp. 223

United States District Court, E. D. Pennsylvania. 223

James and Verna DRUMMOND 223

v. 223

HILTON HOTEL CORPORATION 223

Civ. A. No. 79-1818. 223

July 3, 1980. 223

MEMORANDUM AND ORDER 223

GILES, District Judge. 223

Defendant, Hilton Hotel Corporation ("Hilton"), has moved for summary judgment in this action for damages. Plaintiff, Verna Drummond was injured as the result of a fall in a hotel whose trade name was the Hilton Inn. Hilton asserts that at no time did it maintain, own, control, or operate the hotel and that the record owner was the Creative Development Company ("Creative"), a wholly-owned subsidiary of the Gebco Investment Corporation ("Gebco"). A written agreement which on its face is a license/franchise agreement exists between Hilton and Creative. In that document, Hilton specifically disavows any agency relationship. 223

Plaintiffs resist Hilton's summary judgment motion asserting the doctrine of apparent agency. They maintain that Hilton held itself out in such a manner as to lead the general public, including hotel guests, to believe they were dealing directly with either Hilton or a servant or employee of Hilton, a hotel corporation of international reputation. Plaintiffs assert that representation of the hotel as a "Hilton Inn" estops Hilton from denying all possessory duties. 223

Upon careful examination of the controlling authority in this jurisdiction, this court concludes that there are material issues of fact presented regarding the existence of both a real and an apparent agency relationship between Hilton and Creative. Accordingly, for the reasons set forth below, Hilton's motion for summary judgment must be denied. 223

I. 224

It is well-settled that summary judgment cannot be granted except on a clear showing that no genuine issue of fact exists. Bryson v. Brand Insulations, Inc., 621 F.2d 556 (3d Cir. 1980); Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3d Cir. 1978). Hilton maintains that it had no ownership or control of the hotel at the time of plaintiff's accident. 224

Plaintiff urges that Hilton should be liable for the alleged negligent acts of Creative based on the doctrine of apparent authority as set forth in the Restatement of Agency s 267. Plaintiffs, opposing the instant motion, reference a signed agreement between Hilton and Creative which purports to be a license and franchise agreement. It has a provision which attempts to deny the existence of an agency relationship and to disclaim all liabilities incurred on behalf of the hotel. 224

"Under Pennsylvania law, when an injury is done by an 'independent contractor," the person employing him is generally not responsible to the person injured." Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 785 (3d Cir. 1978), citing Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 150-51, 189 A.2d 271, 277 (1963). "However, when the relationship between the parties is that of 'master-servant' or 'employer-employee' as distinguished from 'independent contractor-contractee,' the master or employer is vicariously liable for the servant's or employee's negligent acts committed within the scope of his employment." Drexel, 582 F.2d at 785, citing Smalich v. Westfall, 440 Pa. 409, 415, 269 A.2d 476, 481 (1970). The basic inquiry which the Pennsylvania courts have set forth to determine whether a given person is an employee-servant or an independent contractor is 224

*31 whether such person is subject to the alleged employer's control or right to control with respect to his physical conduct in the performance of the services for which he was engaged.... The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result. 224

Drexel, 582 F.2d at 785, quoting Green v. Independent Oil Co., 414 Pa. 477, 483-84, 201 A.2d 207, 210 (1964). "Actual control over the manner of work is not essential; rather, it is the right to control which is determinative." Drexel, 582 F.2d at 785, citing Coleman v. Board of Education, 477 Pa. 414, 421-22, 383 A.2d 1275, 1279 (1978). 224

In Drexel, the Third Circuit observed that difficulties exist where the parties occupy the status of franchisor and franchisee. The mere existence of a franchise relationship does not necessarily trigger a finding of a master- servant relationship, nor does it automatically insulate the parties from such a relationship. Whether the control retained by the franchisor is also sufficient to establish a master-servant relationship depends in each case upon the nature and extent of such control as defined in the franchise agreement or by the actual practice of the parties. Drexel, 582 F.2d at 786. In Drexel, the defendant occupied the status of franchisor by virtue of a signed agreement. Although the franchise bore the name of the defendant, it denied all ownership and control and thus all liability for any negligence on the part of the franchisee. Notwithstanding a written provision in the agreement which stated that the liability of the defendant was strictly limited, the court concluded that other clauses in the agreement could be construed as reserving to the defendant the right to control certain facets of the franchise. For example, there were clauses requiring the franchisee to operate under the name of the defendant/franchisor, granting the defendant the right of inspection, and requiring that the franchise operate as part of a national organization securing its strength through adherence to defendant's "uniformly high standards of service, appearance, quality of equipment, and proved methods of operation." Id. 787. Such clauses prompted the court to state that it could not hold as a matter of law that a master-servant relationship did not exist. 224

In the agreement between Hilton and Creative, Hilton has the right to consult with Creative on operating problems concerning the hotel, the right to inspect the hotel to maintain the standards of the Hilton system. Creative is required to feature Hilton's name in all advertising and promotional material. The agreement does have a clause limiting Hilton's liability. Yet, as stated in Drexel, the mere fact that there is express denial of the existence of an agency relationship is not in itself determinative of the matter. Id. 786. Since such a denial of agency is not sufficient to relieve Hilton of all possible liability as a matter of law, the issue of Hilton's right to control any operations of the hotel is an issue for jury determination. 225

II. 225

Plaintiff's contention that Hilton should be liable for the alleged negligent acts of Creative, irrespective of an actual agency relationship, is based on the doctrine of apparent agency as set forth by the Restatement (Second) of Agency s 267 (1975), which provides as follows: 225

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such. 225

Accord, Restatement of Agency s 267. 225

Plaintiffs cite Taylor v. Costa Lines, Inc., 441 F.Supp. 783 (E.D.Pa.1977), for the proposition that Pennsylvania law would adopt *32 this section of the Restatement. Hilton asserts that the Pennsylvania courts have traditionally rejected the application of this principle to tort actions. [FN1] The Third Circuit in Drexel agreed with the decision of the trial court in Taylor, and concluded that the Supreme Court of Pennsylvania would adopt s 267 or some similar principle of apparent agency. Drexel, 582 F2d at 791-94. Hilton could therefore be liable under this doctrine if the plaintiff makes a showing that Hilton represented Creative to be its servant and that plaintiff justifiably relied on such representation. 225

FN1. Hilton cites Janeczko v. Manheimer, 77 F.2d 205 (7th Cir. 1935) and Trautwein v. Loeb, 19 Pa.D. & C. 394 (Phila.Co.1933). These cases were specifically distinguished in Drexel, 582 F.2d at 791 n.14. 225

In Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir.) (applying New Jersey law), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 57 (1971) while citing s 267, the court concluded that a question of apparent authority existed where a gas station was neither owned nor operated by Texaco but prominently displayed the Texaco insignia and slogan and where Texaco had engaged in national advertising, the effect of which could be found to instill confidence in Texaco gas stations. In Drexel, the Court also concluded that there were sufficient indicia of authority to raise questions of fact as to whether the elements of apparent agency had been established. Among these indicia were provisions in the franchise agreement which required the franchisee to use the name of the defendant/franchisor in all promotional and advertising materials. 582 F.2d at 795-96 225

In the instant case, plaintiffs reference to provisions in the license/franchise agreement between Hilton and Creative which require Creative to "disclose in all dealings with suppliers and persons, other than guests, that it is an independent entity and that Licensor (Hilton) has no liability for debts," and "Feature in the Hotel operation, in the guest rooms, public rooms and other public areas of the Hotel, and on the various articles therein as specified in the Operating Manual and in advertising and promotional material, the name 'Hilton' " 226

Therefore, this court concludes that whether Hilton held itself out to the public as the owner or operator of the Hilton Inn is a proper issue of fact for determination by a jury. 226

Ramos v. Preferred Medical Plan, Inc. 226



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