The opinion of the court was delivered by: WADDY
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp.]
ORDER GRANTING SUMMARY JUDGMENT AS TO SOME OF THE PARTIES
Upon consideration of the motion of defendant American District Telegraph Company for summary judgment, the points and authorities in support thereof, plaintiff's points and authorities in opposition thereto, the exhibits and entire record herein, and it appearing to the Court that there exists no genuine issue of material fact and that defendant American District Telegraph Company is entitled to judgment as a matter of law as to Counts I, II, III and V of the complaint, and that plaintiff is entitled to judgment as a matter of law as to Count IV, and that plaintiff's exclusive remedy is the liquidated damages provided for in the contracts between the parties, and the Court having filed a memorandum opinion herein, it is by the Court this 22nd day of November, 1974,
ORDERED, that the motion of defendant American District Telegraph Company for summary judgment as to Counts I, II, III and V of the complaint be, and the same hereby is, granted; it is further
ORDERED, that the motion of defendant American District Telegraph Company for summary judgment as to Count IV of the complaint be, and the same hereby is, denied; it is further
ORDERED, that judgment be, and the same hereby is, entered for plaintiff against defendant American District Telegraph Company as to Count IV of the complaint; it is further
ORDERED, ADJUDGED AND DECREED, that American District Telegraph Company's liability under Count IV of the complaint is limited to the sums stipulated in the applicable contract provisions as liquidated damages; and it is further
ORDERED, that the remainder of this case be, and the same hereby is, set for trial on December 9, 1974 at 10:00 a.m..
Joseph C. Waddy, United States District Judge
Plaintiff, a liquor wholesaler, brings this action for compensatory and punitive damages against American District Telegraph Company (ADT), a national company in the business of installing burglary, holdup and fire alarm systems for business concerns, and two employees of ADT. Plaintiff alleges that the individual defendants, Hines and Smith, stole approximately $57,000 worth of goods from plaintiff's warehouse while working for defendant ADT. Defendant has moved for summary judgment and plaintiff has filed opposition thereto.
The first three counts of the complaint allege theft, fraud, and breach of trust. In these counts plaintiff seeks to hold defendant ADT liable under the doctrine of respondeat superior for actions of its employees. Plaintiff maintains that the actions of the employees were within the scope of their employment since their employer, ADT, put them in a position, clothed with apparent authority, to be on plaintiff's premises and effect the burglaries. ADT concedes, for the purpose of its motion, that the employees stole the property of plaintiff as alleged in the complaint. However, ADT denies liability and maintains that the actions of its employees were not within the scope of their duties and that ADT cannot be held vicariously liable for any theft, fraud, or breach of trust committed by its employees which occurred outside the scope of their employment, where there is no benefit to or ratification by ADT shown. Plaintiff agrees with ADT's position that it never ratified or in any way benefited from the actions of its employees in committing any theft, fraud, or breach of trust.
In determining whether a principal is liable for the torts of its employees, the District of Columbia adheres to the "purpose" test. The "purpose" test provides that where an act is committed by the servant (agent) solely for his own purpose, such act is outside the scope of his employment, unless the tort is actuated at least in part by a purpose to serve the principal; otherwise, the principal is not liable. Meyers v. National Detective Agency, 281 A.2d 435 (DCCA1971). This is despite the fact that the employer may have put the employee in a peculiarly advantageous position, as a condition of his employment, to commit the tort. See Lyons v. Carey, 385 F. Supp. 272 (D.D.C. 1974) (Parker, J.) and cases cited therein.
While the question is one of degree, and normally a question of fact for the trier of fact, "if the departure from the employer's business is of a marked and decided character the decision of the question may be within the province of the court," Grimes v. B. F. Saul Co., 60 App. D.C. 47, 47 F.2d 409, 410 (1931); accord, District Certified TV Service, Inc. v. Neary, 122 U.S. App. D.C. 21, 350 F.2d 998 (1965) (relying on undisputed facts, the Court of Appeals reversed the judgment of the trial court that the defendant employee was engaged in master's business, distinguishing Dilli v. Johnson, 71 App. D.C. 139, 107 F.2d 669 (1939), the case chiefly relied on by plaintiff herein); Lyon v. Carey, supra (defendants' motion for judgment notwithstanding verdict granted where jury found that employee was acting within scope of employment). In Great A&P Tea Co. v. Aveilhe, 116 A.2d 162 (DCCA1955), the ...