Opinion
No. 352.
June 4, 1945.
Appeal from the District Court of the United States for the Southern District of New York.
In Bankruptcy. Proceeding in the matter of Sabbatino Co., Inc., bankrupt, wherein Louise M. Camarda, as administratrix of the goods, chattels and credits of Emil J. Camarda, deceased, filed claim for damages resulting from death of her intestate, objected to by Peter J. Haberkorn, trustee in bankruptcy. From an order denying a petition to review the referee's order disallowing the claim, the claimant appeals.
Reversed and remanded.
In the bankruptcy proceedings relating to the bankrupt, Sabbatino Co., Inc., appellant filed a claim for damages resulting from the death of her intestate, Emil Camarda. The claim alleged that, before the bankruptcy, on October 2, 1941, Camarda had been shot to death in the corporate offices of the bankrupt company by its vice-president, Salvatore Sabbatino with a revolver ("gun") owned by the company, and that the shooting had been due to the company's negligence. The trustee in bankruptcy having filed objections, the claim was tried before the referee in bankruptcy. The evidence at the trial disclosed the following:
The bankrupt company was engaged in the stevedoring business. Frank Hoey, the company's president, and Sabbatino, its vice-president, each owned one-half the company's stock and were its only managerial officers.
For some three months before the shooting, Sabbatino, so Hoey testified, had seemed to Hoey "to be in a breakdown, a nervous trouble breakdown * * * He was almost hysterical at times," and sometimes broke into tears in Hoey's presence. Hoey, who believed that Sabbatino "was an excitable man," thought he "should see a doctor." Baldwin, a friend of Hoey and Sabbatino, told Hoey that he, Baldwin, had spoken to a doctor of Sabbatino's symptoms and that the doctor had said Sabbatino "should see a psychiatrist."
The company owned two guns. Sabbatino had a license to use one of them. He was delegated to meet the company's bookkeeper and paymaster, Fleri, on pay-days, Fridays, and to accompany him to the dock and during the paying of the company's workers. On such occasions, Sabbatino would carry one of the guns, and Fleri the other. The guns, when not in use, were kept, loaded, in the company's safe. Sometimes Sabbatino would take one of the guns home with him the night before pay-day, to avoid the necessity of returning to the office the next morning. Several times, to Hoey's knowledge, Sabbatino had taken a gun from the safe in order to display it when engaged in an argument in the office; the evidence was in conflict as to whether on such occasions Sabbatino had ever flourished the weapon.
On the morning of Thursday, October 2, 1941, at about 10 A.M., Hoey met Sabbatino at the company's office. Soon after, he and Sabbatino went together to Ebling's saloon on the street floor of their office building. There Hoey had one drink and Sabbatino had three drinks of rye whisky. Soon after, they went to the office of the U.S. Compensation Commission, where they attended a compensation hearing which lasted some ten minutes.
After the hearing at the Compensation Commission, Sabbatino and Hoey met a man named Burke, in the Commission's building, with whom they had a conversation about a compensation case known as the Anderson matter. Burke was a delegate of the Longshoremen's Union. Anderson had been injured when he was an employee of the company about a year before, and had received an award of compensation. Anderson had told Sabbatino that Burke had interfered in Anderson's case and that Sabbatino Co. had been "gypped." Sabbatino had told Hoey that he thought that Burke interfered in some way in procuring for Anderson an excessive award. Sabbatino wanted to talk to Burke about the Anderson affair but Burke said that he was then busy with other matters and would visit the company's offices the next morning "to talk it over."
After this conversation with Burke, Sabbatino and Hoey returned to Ebling's saloon sometime between 11 and 12 A.M. There Hoey had one or two drinks of "gin fizz" and Sabbatino had one or two drinks of rye. They remained in the saloon about five minutes and then went up to the offices and remained there until lunch time, when Sabbatino and Hoey made a third visit to the same saloon where Sabbatino had four drinks of rye whisky. They left the saloon after lunch, between 1:30 and 1:45 P.M., to return to their office. In the elevator-car of the building, in the presence of Hoey and strangers, Sabbatino urinated.
Soon after 2 P.M. Hoey and Sabbatino, in the company's office, for a short time discussed the unloading of some cargo and some rates. Hoey testified that Sabbatino then "had a pretty good load of liquor in him"; he also testified, however, that Sabbatino was able to conduct the discussion intelligently. This discussion over, Sabbatino asked Hoey to go downstairs with him to have another drink. Hoey did not go but Sabbatino did.
While Sabbatino was out of the office, Camarda entered. He and Sabbatino had been friends for many years. He had often had business transactions with the company, but on this occasion he said he had come to tell Sabbatino the names of persons to whom he intended to give tickets for a Columbus Day dinner, which Sabbatino had given him. Hoey told Camarda that Sabbatino was downstairs. Camarda said that he would go down and get Sabbatino. Not long after, Camarda and Sabbatino returned to the office and entered the room in which Hoey was sitting. Sabbatino then discussed with Camarda the Anderson matter, Burke and Anderson being both members of the Union of which Camarda was an official. Sabbatino told Camarda that he had been badly treated in that case and that Burke had interfered. Hoey testified that he knew that Sabbatino then "had a pretty good lot of whisky in him," but seemed "to be handling himself all right." However, he admitted that previously, when testifying in the New York Court of General Sessions in connection with a criminal trial of Sabbatino, he testified that Sabbatino, at the time of this conversation with Carmada, was drunk. When questioned by appellant's lawyer, Hoey stated that that former testimony was correct.
In the midst of this conversation with Camarda, Sabbatino went to an adjacent room and asked Fleri for a gun. Hoey heard Sabbatino make this request. Fleri took a gun from the company's safe and gave it to Sabbatino who then fired the gun, a bullet striking the radiator in the room adjacent to that in which Hoey and Camarda were sitting. Two clicks were then heard, after which Sabbatino asked Fleri for more bullets, but Fleri said there were no more. Sabbatino then came back to Camarda and renewed the conversation about Burke, displaying the gun and saying, "I'm going to show him that tomorrow," to which Camarda replied, "What have I got to do with Burke?" The gun then went off twice, and Camarda was fatally wounded.
The Referee held that the company had not been guilty of negligence and entered an order expunging the claim. In an opinion which he filed, he said: "I made no Finding to the effect that Sabbatino had previously used a gun to threaten people in view of the contradictory statement of the record on this point. In my opinion the record does not warrant a Finding that the past conduct of Sabbatino was such as to bring home knowledge to Hoey and Flerri of facts which should have led them to anticipate the happening of that which happened, the shooting of Camarda. Therefore I found that defendant's negligence was not the cause of the accident. If defendant was not negligent by reason of the facts found, neither was plaintiff guilty of contributory negligence. However, if defendant were guilty of negligence in not doing something to restrain Sabbatino after he shot at the radiator, by the same token Camarda was guilty of contributory negligence." Included in the Referee's findings are the following:
"11. In the inner office in the presence of Hoey, a conversation developed between Camarda and Sabbatino * * * At the time of this conversation, though Sabbatino had a pretty good lot of whiskey in him he seemed to Hoey to be handling himself all right.
"19. The record does not warrant a finding that Sabbatino's condition as observed by Flerri was such as to require him, Flerri, to depart from his frequent practice of giving Sabbatino a loaded revolver, on Thursday afternoon, the day before the money for the payroll was obtained.
"25. During the interval between the time Sabbatino shot the radiator and the time the gun was discharged, fatally wounding Camarda, there was ample opportunity for Hoey, Flerri * * * Camarda to have disarmed Sabbatino.
"26. During the same period of time, Camarda had ample time to decide to get out of bankrupt's offices, and to have so done.
"27. That none of the things specified in Findings 25 and 26 happened was due to the fact that neither Hoey, Flerri * * * or Camarda considered that there was any danger that what happened, would happen.
"28. The shooting of Camarda by Sabbatino was not an act committed within the scope of Sabbatino's employment by bankrupt, while engaged in bankrupt's business, or done with a view to the furtherance of bankrupt's business.
"29. It was not negligent of bankrupt's employee Flerri to have given the loaded gun to Sabbatino at his request * * *
"30. It was not negligent of bankrupt's employees Flerri and Hoey not to have disarmed Sabbatino after he shot the radiator.
"31. The killing of Camarda was not caused by the negligence of defendant."
The judge below entered an order denying a petition to review the Referee's order. In his opinion, the judge said in part: "I think * * *, when Sabbatino took the gun and displayed and waved it in front of Camarda he had entirely abandoned any duty he may have had in connection with the Corporation. The Corporation did a stevedoring business, a legitimate business. Sabbatino had certain duties in connection with the Corporation, none of which were intimidating anyone and none could be said to be displaying and waving a gun in front of another * * * I think it may very well be said that the death of Camarda was not due to any fault in the use or management of the Corporate property. The office of the Corporation was used as a business place where it conducted its affairs through its employees and officers. What Sabbatino did with this revolver on this afternoon of October 2, 1941, in the office of the Corporation was no part of the Corporation's management of its property * * * The question now presents itself: Assuming that Sabbatino was acting beyond the scope of his authority and not on the business of the Corporation, what duty did the Corporation owe to Camarda on this afternoon? The Corporation had this duty, i.e., to use reasonable care to prevent an injury to Camarda by a negligent and dangerous act performed on its premises by its employee, Sabbatino. Even though he was acting outside the scope of his employment, it had the duty to prevent such an act where it could have been prevented by the exercise of reasonable diligence * * * The Corporation, of course, could only act through its employees to whom it had delegated authority to carry on its business. If these employees were derelict and negligent in that they failed to use reasonable care and foresight to prevent injury to Camarda, then of course under the rule I have enunciated, the Corporation would be liable for negligence. So we are presented with this problem. May it be said that Hoey and Flerri failed to use due care and reasonable diligence in that they permitted and allowed Sabbatino to have the revolver and failed to disarm him after he had discharged it in the outer office. In determining whether or not these two men failed to exercise reasonable care and foresight, one must look at the whole situation. Did they believe, or should they have believed that a dangerous situation was involved? Did they have any reason to expect or know or should they have known or did they believe there was a necessity to restrain Sabbatino and did they have the opportunity for doing so? Each of this type of case must be decided on its own set of facts. The Referee has found against claimant in this respect. Rather reluctantly I have come to the conclusion that the Referee is correct. True, at the time of the shooting and for some time before, Sabbatino was without question under the influence of liquor. Yet, as the Referee has found and as it appears from the testimony, he was apparently able to discuss business intelligently. He and Camarda had been life long friends. They had no quarrel; there was no quarrel between them in the office. Sabbatino apparently had no ill will against Camarda. Whatever quarrel he had was with Burke. Sabbatino apparently had no complaint against Camarda by reason of the Anderson matter. He simply was telling him about his quarrel with Burke. From the evidence, it seemed to me as I read it that no one had any intimation of impending trouble. Sabbatino said nothing about intimidating Camarda and made no reference to using the revolver. As far as getting the revolver was concerned, it was not an unusual thing on Thursday for Sabbatino to take the revolver for use the next day * * * As far as Hoey is concerned, I am satisfied he had no apprehension of danger and I can't say that he should have had such an apprehension. Certainly no one in the office apparently realized that a dangerous situation would develop after Sabbatino obtained the revolver. This is so certainly up until the time that he shot off the revolver in the outer office * * * After the revolver was shot off, I still feel that no one appreciated that anything would happen. When Sabbatino came into the room, Camarda and Hoey both kept their seats. When Sabbatino started to wave or show the revolver to Camarda it is a problem what anyone should have done. Did anyone expect or contemplate that the revolver might be shot? I think not. However, another element enters here. Assuming that there was danger at this time, I doubt whether any one would be justified if they felt there was danger in attempting to disarm Sabbatino. It seems to me the best and safest thing to have done at this time was to have remained quiet. Unfortunately this turned out not to be the safe thing to do. In considering what Hoey should have done, I think this is an important element. After Sabbatino shot the revolver, apparently there were two double clicks from the revolver heard both by Flerri and Hoey. Sabbatino then asked Flerri for more bullets which he did not get because there were no more. Hoey might very well have thought when Sabbatino came into the room that the revolver was empty * * * In holding as I do, I have been greatly influenced by the Findings of Fact of the Referee. There is evidence in the case to justify those Findings. Where there is a conflict of testimony, I feel that I should follow the Referee as to the Findings he makes on those conflicting questions of fact * * * In the briefs presented to me by the attorneys, the question of contributory negligence was discussed. The Referee made no Finding in that respect. I, therefore, feel that it is not necessary for me to discuss it."
Evans, Rees Orr, of New York City (Fred H. Rees and William G. Walsh, both of New York City, of counsel), for appellant.
Chauncey H. Levy, of New York City (Sydney Basil Levy, of New York City, of counsel), for appellee.
Before SWAN, CHASE, and FRANK, Circuit Judges.
We think that crucial portions of the testimony did not receive adequate consideration by the Referee and the judge. The Referee's opinion and findings show that he ignored the uncontradicted testimony of Hoey's knowledge and belief concerning Sabbatino's mental condition during the three months before the shooting. He ignored the significance of the fact that, after Hoey and Sabbatino had discussed the matter of rates, Sabbatino had left the office again to visit the saloon. He also disregarded Hoey's earlier testimony, which Hoey admitted was correct, that, at the time of Sabbatino's conversation with Camarda, Sabbatino was drunk. The Referee stressed what Hoey believed, and centered his inquiry on the question whether there was negligence in not restraining Sabbatino after he had shot at the radiator. The judge did not consider the testimony which the Referee had ignored. The judge, too, emphasized the issue of negligence with reference to the failure to restrain Sabbatino after he first fired the gun; underscored Hoey's subjective reactions; and regarded as important Sabbatino's lack of animus towards Camarda because it showed no reason for apprehension by Hoey that Sabbatino would deliberately shoot Camarda.
As we view the evidence, there can be no doubt that a reasonable man, with Hoey's knowledge of Sabbatino's previous mental condition, as manifested by his previous conduct, and of his drunken state at the time when he asked for the gun, would have foreseen that it was reckless to allow Sabbatino to have possession of such a dangerous weapon. The test, of course, is not what Hoey thought, but what a reasonable man would have thought. And it is immaterial that such a man would not have foreseen the particular accident which occurred, for he would surely have foreseen that Sabbatino, armed with a loaded revolver, since he might discharge it accidentally, would be a potential menace to everyone in the company's office.
We pay no attention to the evidence as to Sabbatino's previous use of the gun for purposes of intimidation.
Mertz v. Connecticut Co., 217 N.Y. 475, 112 N.E. 166; The Germanic, 196 U.S. 589, 595, 596, 25 S.Ct. 317, 49 L.Ed. 610.
See Lilly v. New York Cent. H.R.R.R. Co., 107 N.Y. 566, 575, 14 N.E. 503; Meisle v. New York Cent. H.R.R.R. Co., 219 N.Y. 317, 320, 114 N.E. 347, Ann. Cas. 1918E, 1081; Burrows v. Livingston-Niagara Power Co., 217 App. Div. 206, 216 N.Y.S. 516, affirmed 244 N.Y. 548, 155 N.E. 892; Munsey v. Webb, 231 U.S. 150, 156, 34 S.Ct. 44, 58 L.Ed. 162.
On the facts thus viewed, we think the company was clearly negligent. It owed Camarda, an invitee, an affirmative duty to use due care to see to it that its premises were not in such condition as to put him in danger of physical harm. The company breached that duty when Hoey, its principal managerial officer, failed to prevent Sabbatino from obtaining possession of the gun. It is therefore immaterial whether or not Sabbatino, when he shot Camarda, was acting within the scope of his employment.
Restatement of Torts, §§ 317, 341, 342, 343; Abbott v. New York Public Library, 263 App. Div. 314, 318, 319, 32 N.Y.S.2d 963; cf. Hall v. Smathers, 240 N.Y. 486, 148 N.E. 654.
We need not consider whether, as Sabbatino was a managerial officer, the company breached the duty to keep the premises safe through his possessing himself of the gun, when drunk, on the company's premises. Nor need we consider whether liability could rest on the ground that the company entrusted its gun to a person known to Hoey, its president, to be in such condition that it might reasonably have been foreseen that the gun might be used to injure third persons.
See Restatement of Torts, § 308; Kuchlik v. Feuer, 239 App. Div. 338, 267 N.Y.S. 256, affirmed 264 N.Y. 542, 191 N.E. 555; Gillner v. Wallace, 240 App. Div. 1003, 268 N.Y.S. 279; Golembe v. Blumberg, 262 App. Div. 759, 27 N.Y.S.2d 692.
Neither the Referee nor the judge found that Camarda was contributorily negligent or "assumed the risk." They could not justifiably have so found. Up to the time when Sabbatino received the revolver, Camarda had no reason to be apprehensive. Once Sabbatino had the revolver, an emergency existed in which it cannot be said that Camarda "assumed the risk" or was negligent because he did not try to depart; for an effort on his part to do so might well have directed to him the attention of the armed drunken man.
The Referee made no finding to that effect. In his opinion he made the oblique statement that, "if defendant were guilty of negligence in not doing something to restrain Sabbatino after he shot at the radiator, by the same token Camarda was guilty of contributory negligence". The judge commented that the Referee had made no finding of contributory negligence and therefore did not himself discuss that issue.
Restatement of Torts, § 470 (cf. § 296); Van Dusen v. State of New York, 112 Misc. 15, 18, 182 N.Y.S. 496; Kolanka v. Erie R. Co., 215 App. Div. 82, 85, 212 N.Y.S. 714.
If, on the remand, it is necessary to hear further evidence on the issue of the amount of damages, the same Referee should conduct the hearing.
See Gulbenkian v. Gulbenkian, 2 Cir., 147 F.2d 173, 177.
Reversed and remanded.