While being cross-examined by defendant's counsel, Anderson,
the arsonist, made the unsolicited statement that his brother, an
"ex-con," was also hired by defendant and provided with a gun,
but not with a handbook of procedures and rules. Defendant moved
for a mistrial. The motion was denied and the jury was instructed
to disregard the statement. Later, defendant objected to the
reference in plaintiff's counsel's closing argument to an
understanding or rumor among "ex-cons" that defendant would hire
anyone. Plaintiff's counsel was told to, and did, thereafter
confine his contentions to what could be shown from the evidence.
An earlier motion by defendant for a mistrial on the ground that
Anderson's credibility had been destroyed by his showing outside
of the jury's presence, of hostility to defendant was denied
because the question of credibility could properly be determined
by the jury. In light of the corrective measures taken in regard
to Anderson's volunteered statement and plaintiff's counsel's
reference to matters beyond the evidence, together with repeated
instructions that stricken testimony and counsel's arguments
should not be treated as evidence, and the strong evidence
aliunde of defendant's negligence, the Court concludes that
defendant was not prejudiced by the denials of its motions for a
mistrial. Barnes v. Tenin, 429 F.2d 117, 120 (2d Cir. 1970).
Defendant's contention that it was irreparably prejudiced by
the exclusion of evidence of its after-the-fact inquiries to and
responses from the police and sanitation departments of
Asheville, North Carolina, and the Illinois Department of
Registration and Education is similarly without merit. In
essence, the argument is that, although it hired Anderson without
investigation of his record, defendant should not be blamed for
this since the actual responses of the agencies, received later,
gave no useful warning. But plaintiff had not been permitted to
introduce in its case evidence showing that defendant had
violated that part of the Illinois Detective's Act which
prohibits the hiring of individuals convicted of crimes which
would be felonies in Illinois. Thus, the proferred documents were
not relevant on the charge of violation of the statute, and the
Court finds no logic in the contention that these documents were
probative on the issue of whether plaintiff's damage was
proximately caused by defendant's negligent hiring.
Defendant argues that the evidence that it provided Anderson
with a gun should have been excluded, citing Brien v. 18925
Collins Ave. Corp., 233 So.2d 847 (Fla.App. 1970). Unlike Brien,
however, this case was not brought and tried on the theory that
the use of firearms by a security service is an inherently
dangerous activity. The fact that Burns guards are entrusted with
guns was relevant on the issue of defendant's standard of care in
hiring and training them.
Finally, defendant assigns error to the Court's giving and
refusing of various jury instructions. For example, it complains
that the jury was not instructed as to the inapplicability of the
doctrine of respondeat superior. But specific instructions were
given as to the elements of plaintiff's claim which had to be
proved — negligent hiring and proximate cause — and defendant's
proposed instruction might well have focused the jury's attention
upon a theory which was not truly in issue.
Defendant objects to the instruction that the amount of care
exercised by a reasonably prudent person varies in proportion to
the danger known to be involved in the activity in question,
urging that plaintiff did not allege or show that the business of
offering security services is an ultrahazardous activity. The use
of this instruction has not been so limited, e.g., Chicago &
N.W.Ry. v. Rieger, 326 F.2d 329 (8th Cir. 1964), and its use in
these circumstances seems particularly appropriate.
Defendant's assertion that the instruction given on the
the Detective's Act was improper is without merit. It is settled
law in Illinois that a statutory violation may be prima facie
evidence of negligence. The pattern instruction here complained
of simply informed the jury that it could consider any violations
of law by defendant in this instance in determining the question
of negligence. Read in conjunction with the other instructions,
it clearly would not allow the jury to find liability without
The Court has reviewed defendant's other allegations of error
in its post-trial motions directed to Counts I and II and finds
them to be without substance. Accordingly, defendant's motion for
new trial on these counts must be, and hereby is, denied.
Although identical judgments have been entered under each of
three counts in this matter, it goes without saying that
plaintiff can collect only once.
It is so ordered.
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