Simmons, Inc., a Corporation v. Pinkerton's, Inc., a Corporation and National Surety Corporation, a Corporation

POSNER, Before CUDAHY and Circuit Judges, SWYGERT, Senior Circuit Judge.

CUDAHY, Judge. Circuit Pinkerton’s, Defendants-appellants Inc. Surety Corporation appeal and National judgment against in them an action for damages property arising out of a fire at a by plaintiff-appellee warehouse owned Sim- mons, Inc. The in returned a verdict damages favor of Simmons and assessed $971,012.65. the amount of We affirm.

I.

Simmons, a manufacturer of residential bedding, and commercial a ware- owned Munster, Indiana, house which it used as regional prod- distribution center for its warehouse, protect ucts. In order to Simmons entered into a contract with de- Pinkerton’s, company fendant a national providing investigative security servic- es, agreed pro- under guard protection vide uniformed for the day, days warehouse hours a a week. provided The contract that Pinkerton’s professional, “ensure a reliable protect proper- its clients’ efficient effort personnel against security ty and hazards.” addition, explicitly accepted negligence, for all acts of fraud part security em- dishonesty on the of its duties, ployees performance of their liability. disclaimed other Pinker- employees represented ton’s also that its were security trained both in and in fire, fire rived and contained the but not before protection. damage building to the and extensive dam- age bedding occurred. 18, 1978, July

About Pinkerton’s hired position security William Depart- Chief of the Munster Fire guard. Hayne apparently lied several ment determined that originated the fire employment application, instances on his partition near a wooden separated deceptions but the went undetected since bedding. stored rows of point Because the Hayne’s Pinkerton’s failed to check refer- origin was 12 inches above the floor in ences and other sources of information an area apparent where there was no him, poli- about in contravention of its own ignition, source of light and in of other cy procedure manuals. Pinkerton’s suspicious circumstances, the Munster Fire neglected give Hayne types also certain requested Chief the Indiana Fire Marshal’s training, including protection fire train- investigate Office to Hayne might whether ing, which its manuals indicated were man- datory security guards. accidentally for intentionally started investigator the fire. An from that office September 25th, 1978, Hayne On William concluded that the fire was of incendiary reported for work at the Simmons ware- origin likely and was most Hayne set as p.m. security guard house at 3:00 The on getter.” an duty ordinarily designated “attention makes rounds at Pinkerton’s re- security points throughout quested the Simmons Hayne that polygraph take a ex- periodic warehouse and checks of fire re- amination, performed which was in Chica- porting equipment, but the because main go. The results of this examination were controlling loading door access to a dock at Subsequently, Hayne agreed inconclusive. the warehouse was in broken and fixed polygraph to take a second examination in open position, Hayne had been ordered to Indiana, Nevertheless, but did not do so. guard remain at a desk loading near the investigator when an later Hayne asked p.m., dock. At 4:30 employ- all Simmons’ he passed whether had taken and the sec- ees left the warehouse. At about 5:45 test, Hayne falsely ond stated that he had. p.m., cleaning person, an office Ms. Anna brought Simmons then diversity this ac- Benedict, reported for work. and Pinkerton’s, against against tion only Benedict and people present were the in loading warehouse, dock Surety Corporation surety area of National as for they spent talking some time in an complaint alleged Pinkerton’s. The that dock, office loading near the where Bene- Pinkerton’s was liable under several theo- working. p.m., Hayne dict was About 6:00 ries: provide breach of the contract to fire get left his station and went to a drink services, protection security failure to vending from some adjoining machines a providing use reasonable care in such ser- storage in part area a different particularly respect to select- vices— warehouse. He then returned to the load- ing, training supervising security per- later, dock area. A few minutes he statutory liability sonnel—and under the get Benedict, offered to a soft drink for Licensing Indiana Detective Law. After vending and then went to back ma- trial jury found favor of Simmons back, gave chines to do so. He came Bene- damages awarded it the amount of drink, dict the post. and started back to his post-trial claimed. Pursuant to Simmons’ According Hayne’s testimony, to he then motion, prejudg- court trial awarded in progress. Hayne discovered a fire at- damages. ment interest on the tempted put to the fire out with several Surety and National raise several claims of extinguishers cannister fire but unsuc- relating error to the trial court’s instruc- cessful. A reel fire hose was available jury, tions to the admission of evidence and area, was not trained to use prejudgment award of interest. We con- operate prop- the hose and was to unable erly. Department The Munster Fire ar- separately. sider each of these claims damages. good There no

II. reason for portion giving this of the instruction. The defendants’ first contention is instructing provision the trial court erred in of the Indiana Detec- arguably applicable a violation of the Indiana Detective tive Law Law, seq. 25-30-1-1 et the issues this case is section 25-30-1- License Ind.Code (1982), se, provides: negligence per when constitutes n that statute issues irrelevant licensee; Employees 25-30-1-11. provide and does not a standard record; requisites— creating action private care cause of (a) employ, may A licensee him assist plaintiff. Despite objections for the private detective, in his business as a as gave parties, judge all the the trial many persons may unlicensed nec- Instruction No. 5 on the Indiana Detective essary. civilly respon- Such a licensee is quoted ver- License Law. The instruction good conduct of each em- sible separate stat- batim seven sections of that acting ployee while he is on behalf of the ute, including relating provisions licensee. act, the definitions of short title Simmons contends that this creates section “private “licensee” and detective busi- damages a cause of action for caused license, ness,” requirements wrongful security guards conduct of suspending or revok- grounds denying, duty, on and hence the instruction while license, requirement a licen- ing a proper. that referred the section was surety provision bond and a see obtain Pinkerton’s, hand, argues the other employ entitling a to unlicensed licensee including part this of section as the instruc- in- challenged The persons to assist it. provi- reversible error because the tion was a that concluded with statement struction statutory does not a standard sion establish preponderance of jury found from a if the care, the of violation of which would consti- that the defendant violated the evidence negligence. tute statute, provisions such conduct “the of diversity In cases state law deter negligence part on of constitute instructions, of mines the substance if done without excuse the defendant procedure in governs the while federal law liability justification,” and should result formulating the the man instructions and proximate cause of the dam- if it was the given. they E.g., in which are Morris ner ages. Getscher, 1306, (8th 708 Cir. F.2d 1309 Chicago, agree, 1983); argue, The defendants we In re Air Disaster Near Crash Cir.1983), 1189, (7th l, provisions if not of the 701 1199 most all of F.2d that Il — U.S.-, denied, 104 S.Ct. quoted in Instruc- Indiana Detective Law rt. ce (1983). first L.Ed.2d 178 Thus our any 5 are issue tion No. not relevant instruc quoted provi- is to determine whether the The of the task this case. bulk given accurately reflected Indiana sub requirements that licensees tion relate sions (re law. Since section 25-30-1-11 meet in to obtain and maintain stantive must order (The good mandatory lating to the conduct of licensees’ term “licensee” license. a is, purpose, perti this employees) in the refers to detective for used statute statute, Pinkerton’s, is businesses, part of the our initial focus not nent such as meaning allega- provision. that Unfortu there no on the employees.) Yet their made more qualify nately, our task is difficult Pinkerton’s had failed to tion con license, inability any to find Indiana cases a had or have our should or obtain for Indeed, only case revoked, struing it. relevant had failed to obtain license had its parties cited is similarly delinquent. that the have Stewart War surety bond or was a Corp. could v. Burns International Securi how ner do not see Thus we (N.D.Ill. Services, Inc., ty had “vio- that Pinkerton’s concluded 1973), interprets provision similar provisions, or that such any of these lated” Illinois statute. plaintiff’s proximately caused a violation Stewart-Warner, Simmons’ claim as in based on Indiana law is security guard starting founded, was accused of suggested well distinction still premises fire on a customer’s he was while noted, fails. As opinion in Stewart- duty, compa on the customer sued makes it statutory Warner clear that the ny employed guard the value for liability wrongful for conduct exists re- destroyed. goods the counts Two of gardless employee whether negli- theory in that were case based on a of gently hired. if Pinkerton’s is cor- hiring, negligent prem and one other was may predicate rect that Simmons not liabili- statutory liability. statutory ised on The ty wrongful hiring, application issue, section at ch. 201- Ill.Rev.Stat. clearly meaningful statute would be in that 10(b)(10),provided that agency a detective might provide liability for where there employer during at “shall all times such otherwise would be none. employment legally responsible be argues also expan- good in the per business” of each interpretation good sive of the Illinois con- employed.1 son it there defendant con provision duct inap- Stewart-Warner tended that statute did create propriate respect provi- Indiana liability sort of over and that exist above sion because the Illinois statute includes held, at common law. The court how many sections relating employee qualifi- ever, purpose of the section was procedures cations and that are absent in impose agencies rather to on detective lia Act; the Indiana presum- Detective hence bility arising for loss from intentional acts ably the intended focus Illinois Act is statute, of their employees. Without the from different the Indiana statute. We do liability such intentional acts could not argument not find this persuasive. Any premised on a theory respondeat governing additional employees standards superior, but could be established of licensees in the Illinois in- Act—which proving negligent hiring. The court stated possibly deed could create additional bases “good provision conduct” extended liability present in the wrongful all Indiana employees “to acts of agencies, point scheme—do not affect basic regardless detective wheth only provision they negligently statutory er on were hired and whether liabil- negligent intentional, ity predicated the acts are was in so Stewart-Warner was they long as were good provision committed while the conduct also at issue employee actually job.” was on the 353 here. We see no in evidence Stewart-War- F.Supp. at 1389. interpretation ner that court’s of the good conduct by section was affected its attempted distinguish Pinkerton’s has employee qualifica- of the awareness other grounds, Stewart-Warner several or- tion sections or some construction of the der to avoid conclusion that the Indiana general purpose of the Illinois Act that provision, which is almost to the identical might applicable be Indiana stat- Illinois statute im- construed Rather, analysis ute. the court’s was es- poses similarly First, liability. broad de- sentially plain interpretation meaning fendant contends that in Stewart-Warner good provision, of the words conduct applicable the statute was because fully applicable one find virtually we to the plaintiff had stated a action cause of for hiring, meaning identical section here. The negligent of a whereas in case Sim- this statutory employer rule that an negligent hiring civilly mons cannot claim is because peculiarity responsible good of a employees’ Indiana that we its conduct law length discuss at pretty clearly some Part III. Assum- this context seems to be ing for the moment that limitation employer on that is when employ- liable 83-1069, 33, 5, Investigators 1. The Detective Act that con- effective Jan. 1984. The new "good subsequently Security conduct" tained the section Private Private Illinois Detective and incorporated 2701 of ch. §§ 2601-2639 & Act is ch. 2651-2680 & Ill, §§ Ill.Ann.Stat. (Smith-Hurd repealed Supp.1984-85). Ill of then P.A. Ill.Ann.Stat., engages Except ee in bad conduct. for this conduct.” Hence we think that the form meaning, the instruction purpose we see took was erroneous. no be served statute, by including provision such a in the note, however, We that the error given liability already established under respect “good with to the conduct” section various more restrictive common law theo- subject is to examination under Rule 61 of ries. the Federal Rules of Civil Procedure disregarded should be if it does not affect Our view that section 25-30-1-11 of rights See parties. substantial imposes Indiana Detective License Law Alloy International Co. v. Hoover-NSK liability agencies on detective Co., Bearing 1222, (7th 635 F.2d 1226-28 wrongful employees conduct of their does Cir.1980). (or An giving refusing error in not necessarily lead to the conclusion that give) particular instruction will not be given instruction on that section here unless, considered reversible error consid proper. contrary, To the the form of ering instructions, all the the evidence and unnecessarily arguments heard, instruction seems confus jury ap noted, pears ing. As we have section 25-30-1-11 was misled or did not understanding a sufficient apparently impose liability intended to the is duty sues and its to determine them. See employee’s for an intentional torts. The Qasem Kozarek, 1172, 716 F.2d effect of the section thus differs from the International, (7th Cir.1983); Alloy respondeat superior. impact And an F.2d at 1226-27. The instructions must be merely instruction that recited this section whole, evaluated “as a in a common sense (presumably any appropriate supple manner, fastidiousness, avoiding inquiring explanations) mental definitions of terms or message conveyed whether the correct appropriate. But the addition of jury reasonably to the well.” Reversal is language purporting to make a violation of inappropriate jury’s unless under equivalent negligence the section makes standing seriously of the issues was affect sense, good provision no since the prejudice complaining par ed to the does not set forth standard of care. ty. Wilk v. American Medical Associa Thus we do not understand how a detective tion, (7th Cir.1983), 719 F.2d 218-19 agency thought can be to “violate” a stat — denied, cert. U.S.-, 104 S.Ct. 2398- establishing wrong ute (1984). 81 L.Ed.2d 355 (and intentional) presumably ful acts of its employees; liability simply standards,2 exists if an Under these do not we employee’s “good given actions do not constitute think that the form of the instruction Although interesting goes proper the dissent makes an ar- relation between the gument against applying judge the federal harmless proper trial and the and the rela- diversity error standard in this it federal appellate tion between courts and trial courts. appears that the law is otherwise. We believe On matters of this the federal court is kind the better view is that summarized Profes- required Suppose, defer to state rules. Wright sors and Miller: example, for that some state were to follow a suggested diversity It has been that in cases required any is error rule that new trial for apply a federal court should harmless error the standard of trivial, technical, whatever, no matter how in the state courts followed might nonprejudicial be. A state is free [citing Traynor, R. Harmless The Riddle of technicality to make its courts citadels of if it Error, (1970) at This seems both 47-48 ]. so, impose chooses to do but it cannot unrealistic and unsound. It is unrealistic be- courts, independent choice on the federal "an subjective problem cause of the nature of the administering justice litigants system for way and the abstract in which rules about properly jurisdiction.” who invoke necessarily harmless error are formulated. 11 C. Wright & Miller, A. Federal Practice And advantage substituting There is no the ab- (1973) (footnotes at 279 omit- Procedure, for those stractions favored in the state court ted). persuaded We are not that the result here developed the federal courts have for any different if state harmless would be themselves. It is unsound because the harm- followed, since, among error standard were oth- doctrine, explicitly less error stated both in supports things, er the same rationale that our Congress, is an Rule 61 and in an Act of important principle any errors here were harmless conclusion that judicial administration judge, again, improper

here constitutes reversible error. The trial it is to outline (correct) gave court “general requirements” number of other in- a detective liability structions as to Pinkerton’s for if agency must meet there is no contention Hayne’s wrongful negligently conduct or or agency the record that the fire, intentionally setting among other has not done so. Thus the recitation of theories, jury and we think the sure to was provisions part these of Instruction No. understand that the additional instruction error as well. civilly that Pinkerton’s was liable for the think, however, We do not that the error good Hayne impose any conduct of did not significant enough is to warrant reversal liability Hayne wrongful- unless had acted because a common sense examination Indeed, ly. seriously Pinkerton’s does not the instructions as a whole us convinces otherwise, merely argues contend quite unlikely that it is that the inclusion the recitation of section 25-30-1-11 was the extraneous material confused or misled (as “unnecessary” confusing in well as jury prejudice of the defendant. above) sense discussed since Pinkerton’s suggests jury may deny legal responsibility any “did not for have been confused about the term “licen- wrongful act that William had com- statute, incorrectly see” under the believ- (Pinker- mitted at the time of the loss.” security guard Hayne, not Pinker- 19.) ton’s atBr. Thus we do not believe ton’s, required to meet the various portion relating of the instruction licensing requirements. It contends that statutory good provision, al- relating various evidence to Pinkerton’s erroneous, though prejudiced Pinkerton’s. security omission of a check on be- analysis only slightly Our different hired, Hayne’s fore he was as well as dis- respect statutory to the other sections honesty application employment, in his for quoted in Instruction No. which relate to might have been taken to be qualifications agen- of licensee detective (inapplicable) statutory “violations” cies, denial, grounds suspension for or rev- provisions, and thus to form the basis for licenses, bonds, ocation of and so on. As negligent. that Pinkerton’s the belief noted, provisions appear these to be entire- depends hypothesis This on a number of ly irrelevant to the case. It is conceivable 1) assumptions: jury ig- doubtful that the that some of them could describe a statu- language nored the clear of the statute tory duty give the violation of which could distinguishes “private between a de- negligence, rise but we are tective business” that must obtain a license any unable to find indication that evi- “licensee,” and thus becomes a and “em- presented dence was at trial that licensees,” ployees may who be unli- provisions were violated. trial court’s persons, erroneously applied and so censed including them in the rationale instruc- guard requirements security the licensee apparently is reflected in tion its statement 2) Hayne; that the then stretched the “quoted sections established clearly inapplicable provisions to fit evi- applicability enterprises of the statute to presented dence on different matters —for engaged security services and outlined example, statutory that it confused the re- requirements satisfy such entities must quirement apply li- (District that Pinkerton’s for a under the Statute.” Court Memo- (about evidence) Order, 6, 1984, cense which there was no 21.) randum and March at employment; Hayne’s application for quoted with But a few sections did estab- while 3) jury and that the then concluded that applicability to Pinker- lish the statute’s Hayne’s ton’s, seemingly “failure” to meet some or all of the same end could have by inapplicable licensing requirements accomplished with less confusion the been by proximately damage effect the caused the to direct to that trial Sim- statement presumably if the federal standard is some- standard also law. But even under federal lenient, properly not be more we believe it is means that such errors should con- what applied “radically erroneous” under Indiana here for the reasons noted. sidered argument (Pinkerton’s ground hiring, and the of circumstances his mons’ warehouse. assumes, course, training supervision, unnecessary of and prejudice as also was merits, to Simmons’ success and not have found Pinker- jury that the would only jury prejudice could serve to one the other theories— ton’s liable on of against Pinkerton's. Hayne intentionally negligently or set that hired, fire, negligently or was trained argument, In of support Pinkerton’s in supervised or so that he was deficient two it cites cases which contends establish attempts extinguish it—but for its his prohibits law that Indiana evidence that an stemming in- confusion from the erroneous employer negligently hired, trained or su statutory liability.3) We find structions on pervised employee, employer an where the reasoning quite implausible, this chain of stipulates employee’s allegedly that find the erroneous instruc- and therefore wrongful scope act was within the of em incomprehensible tion—albeit harm- first, ployment. —to v. B P Lange & present error in the context. less Inc., (N.D. Express, Motor Ind.1966), sitting the district court in diver III. sity plaintiffs refused allow to amend complaint their to assert a new cause of complains next of the intro- employer against negligent action that related to duction various evidence hiring, original sought complaint where the industry-wide, as as to Pinkerton’s well employer personal to recover from the hiring, own, practices regard to train- by injuries employee’s negligent caused its security guards, and supervising driving principles under traditional of re practices from Pinkerton’s deviation spondeat superior. employer The in that hiring, training supervising William employee case had admitted that the was trial, objected to Hayne. At scope operating employ of his within that it this evidence on the basis ment at the time of the collision that under Federal Rule of Evidence relevant proposed The amend prompted the suit. probative sub- and that its value was complaint alleged would have ment stantially outweighed by prejudicial its ef- part employ negligence on the direct have excluded fect and thus should been hiring retaining er reason its or The under Federal Rule of Evidence person employment a it knew or whom argument proposition is the core of negligent was a should have known recovery tort, all of Simmons’ theories — unsafe driver. statutory in common contract —have proof acted necessity general first reviewed the court wrongfully hiring at the time of the fire at negligent Sim- law on the state stip- only plant. theory Pinkerton’s has theory, concluding mons’ Because acting applied “special within situations” ulated been employment agency principles at the time of the scope of his traditional which loss, liability. Where a re- argues probably Simmons need not allow theory applicable, a wrongful superior at proven Hayne’s spondeat act have hiring theory ordinarily would damage. negligent proximately caused the that time re- respondeat case superior not be. A carried Pinkerton’s burden would have This proof wrongful of a act omission respondeat quires principle the tort su- under causing plaintiff’s in- po- by employee perior. additional tort, proof generally suf- juries. would be tentially to other contract Such relevant theories, employer’s Hayne’s statutory back- ficient to establish such course, have ments that the erroneous instruction could are such that where instructions 3. Of jury profound led to confusion that on one of two such have based its decision could theories, really might some based its decision on of which is valid and one or more theoretical, invalid, inapplicable of the Indiana speculate breach we cannot about others theory However, are We think we entitled we Detective Law. in this case chose. expectations jury. higher argu- persuaded have somewhat simply defendants’ are 600 respondeat superior, regardless

under the negligent in hiring tavern and re- employer whether the due care in used taining employee despite knowledge the of hiring the employee. the Thus additional propensities; his violent the tavern filed a necessary prevail negli- evidence on the motion in limine to exclude this evidence. count, gent hiring indicating that the em- granted motion, The court that and the ployer employ- had the reason know of plaintiffs appealed. Following the reason- dangerous propensities example ee’s —for Lange, supra, in the held court previously the employee had driven the evidence had properly been excluded. negligently only superfluous be —would The import court observed that the of the “ prejudicial but would the issue ‘separate’ negligent cause of action [for employee actually negli- the whether drove hiring] generally arises when an gently plaintiff’s at of the time the loss. agent, employee beyond or steps servant hand, On the other in in situations which a recognized scope the of his employment to respondeat superior theory would not be injury upon par- commit a tortious a third successful, despite employee’s wrong- the 529, ty.” Ind.App. 162 at 320 N.E.2d at as, example, ful the bad act where act — By contrast, 767-68. was intentional and not considered to be theory is of no value where an em- of scope employment within —then ployer stipulated has employee that his employer proof that the have should known scope employment. was within the of his dangerous employee’s traits and so respondeat superior pro- The doctrine of hired should her “takes on inde- proper vides the vehicle a direct ac- pendent significance.” 257 at 321- recovering damages tion aimed at resulting specific negli- from a act of Following reasoning, court in gence an employee committed within Lange permit plaintiff refused to of scope employment. his attempt prove negligent hiring in addi- 530, Id. at (footnote at N.E.2d respondeat original to its tion claim under omitted). Shipley City See also superior, despite recognition court’s of Bend, South apparently Ind.App. that Indiana negli- does allow a 372 N.E.2d gent hiring (3d Dist.1978). of cause action. Since em- 490 Lange ployer of scope employ- admitted application We first consider the of ment, proof employee’s past of negli- to the evidence that cases gence only “reinject agency is- adequately supervise failed train and guise sue negligence hiring under Lange security guard Hayne. Both and proof adds to the burden of while Tindall arguably distinguished can be sim prejudicing the defendant’s case on the is- ply on the basis that neither of those cases negligence sue of the at driver’s the time improper training a claim of involved of the accident.” Id. at 324. supervision, only negligent hiring A similar result reached court employee’s danger retention based on the Enderle, Tindall v. Ind.App. propensities. principle ous But even if the (3d Dist.1974). 320 N.E.2d 764 In that case Lange Tindall fully and applies, we employee of the defendant tavern-owner improper training believe that evidence of tavern, patrons killing two shot one supervision properly and admitted in plaintiffs’ subsequent In the of them. ac- this case. wrongful negligence tion for death and that, argument against employee, tavern Tindall, Lange proof acted stipulated that employee had tavern wrongfully at of the fire is time acting the shots while within the fired common element to all Simmons’ theo- employment. plaintiffs scope his ries, improper and so additional to introduce evidence the em- wanted others, training supervision should have been ployee previously assaulted in- cluding tavern, to patrons unnecessary preju- show that excluded as both Indeed, agree premise spe- this is not mere not with the theoretical We do dicial. theo- trial argument. Hayne One of Simmons’ testified at that after of this culation: its recovery based on contract fight ries of was fire discovering attempting and to Pinkerton’s, Pinkerton’s which extinguishers, with it hand-held fire he professional, “ensure a promised it would hose, reel-type attempted then to use a fire protect to its efficient effort reliable and get operate. but could not it to Simmons personnel against se- and property clients’ presented the reel hose evidence that fire There abundant evi- curity hazards.” was (and fully operational would was have been industry both standards dence at trial that putting far effective in the fire more out training manuals Pinkerton’s and own extinguishers). Hayne, than fire how- prevention fire and fire clearly considered ever, had not been trained to use it and so guard’s security fighting to one of a did not realize that the hose had to be duties, important provided for most and so completely oper- it unreeled before would proce- elaborate) training (fairly certain jury might properly ate. have Despite matters. these dures these concluded Pinkerton’s breached its standards, gave Hayne William by failing Simmons to train contract with training. virtually fire-fighting no effective Hayne provide “professional, so and a reli- presented with re- was Similar evidence effort,” though able and efficient even spect to We think self-evi- supervision. responde- was under not liable be inconsist- that these failures would dent Therefore, superior principles. the evi- at and “professional, reliable effi- ent with improper training supervision dence of and protect property, cient effort” to Simmons’ unnecessarily duplicitous and not breaches of hence could be considered and should not have been excluded under the contract. reasoning Lange and Tindall. purposes, for immediate important More proxi- of contract proof such breaches hiring negligent The evidence as to damages mately caused Simmons’ presents question more difficult because proof that necessarily involve William not directly the sort of evidence at wrongfully time of Hayne acted at the Lange The district issue in and Tindall. fire, unnecessarily duplicating evi- thus distinguishable those court found decisions liability necessary to show under re- dence not involves on that this case the basis example, the superior. For spondeat neg allegations liability simple on based might well Simmons’ evi- have disbelieved in ligence/respondeat superior, but also fire, Hayne started the either dence premised liability on allegations of volves Further, negligently. intentionally contract, statutory theories of breach of to believe that jury was free tort, to liability and intentional which failing negligent or ade- to discover not hiring As negligent evidence was relevant. fight fire. Under circum- quately result, pertain the court allowed evidence stances, jury would have to find industry-wide and to Pinkerton’s to tort of defendant Pinkerton’s favor hiring practices, (alleg and standard theories, Hayne would statutory since deficient) edly hiring procedure used with wrongful act. not have committed respect Hayne, failed uncover mean, however, This would background Hayne’s information about liability on the contract. could not find him made unsuitable presumably everything in his might have done security guard. employment as a fire, acting reasonably to combat power theo- that the additional We are sure heroically yet adequately —and —even in this case alone ries of involved him prop- train failure to Pinkerton’s utter distinguishing contract, present a sufficient basis might erly, in breach Lange Unlike inability and Tindall. Hayne’s caused proximately training supervision, evidence resulting improper effectively, fight the fire hiring apparently only adds negligent damage to warehouse. plaintiffs proof burden of without case accom- to purpose determine the for which plishing any independent purpose. Assum- the sought “additional” evidence is to be ing Hayne dishonest, was indeed unre- admitted, probative poten- its value and its liable, on, and so and that Pinkerton’s prejudicial tial impact. In Lange and Tin- its negligent breached contract and/or was dall, it purpose was obvious that no could failing in to at the discover facts time by allowing be served evidence the em- of him, apparently it a hired such failure ployee’s prior prejudice bad acts except to could not be of proximate the cause Sim- the jury and so it sensible to exclude damages Hayne wrong- mons’ unless acted it. the in Yet courts both those cases Therefore, fully the time the fire. at of acknowledged that the result be dif- would proof Hayne’s wrongful of conduct would ferent the were evidence to relevant some necessary respondeat supe- for the both legitimate consideration so that it took on theory hiring negligent rior and the theo- independent significance (for some exam- established, ry; wrongful if were conduct ple, plaintiff the allege were to an inten- respondeat it ensure on the would success tort, Lange, 322-23; tional at superior theory, thereby making additional Tindall, 162 Ind.App. at N.E.2d at redundant, negligent hiring of evidence and 767-78, pursue punitive damages, or Tin- Thus, unnecessarily prejudicial. such evi- dall, Ind.App. at 320 N.E.2d at may spirit, fall if not dence within 768.) Here, although negli- evidence toas letter, Lange-Tindall rule.4 gent hiring may technically have been un- given necessary proof wrongful Nevertheless, do we not think rule is fire, setting fighting highly it was require so inflexible as to reversal this relevant to several alternative but inter- all, case. First of do not Lange we believe (Pre- twined contract and tort theories. proposition and Tindall stand for the sumably, example, it Pink- established proof given proposition a whenever promise erton’s breach its to ensure a sufficient to under establish one “professional protect to effort” theory, proof no Simmons’ necessary additional to words, may property.) In other think theory succeed under we another be ad- Rather, mitted. think “independent signif- we a common-sense evidence has sufficient assessment each must be made in such plaintiff pro- icance” that to entitled note, however, 4. We possible necessary satisfy security that it is con- the "reasonable . theory negligent hiring struct guard” a that Pinkerton's perhaps And a standard of care. more security guard Hayne proximately caused guard (Hayne high educated school) did not attend damages, Hayne though Simmons' act even did not figured would have out to use how wrongfully at the time of fire. hose, responsible, reel fire or a more motivated might well have as acted would a reasonable guard (Hayne’s employment Army and records fire, person fighting and thus would not impressive) than were less would have not left negligent; have been Pinkerton’s could not then post get employee his chat with another and a be argued under liable the tort theories. Yet it can be might Hayne's soft drink. actions not be promised that Pinkerton's than more wrongful, yet deemed one could still be left furnishing reasonably person, of a careful feeling they a contributed to the dam- guard. reasonably security even careful Pre- so, age. If Pinkerton's breach of contract every security sumably agency promises local it hiring Hayne, William when it reasonably provide security guard, will careful done so it had followed own established (and for) paid but Simmons here hired nation- screening procedures, proxi- could be seen aas company reputation al with an established damage. mate cause Under reason- company represen- specific That record. made Hayne's background evidence (for quality guards tations as of its exam- hiring practices Pinkerton's would not be ple, bragged: one advertisement "At heart of unnecessary liability. deemed to establish its Security Pinkerton's Service [sic] stands our theory, We rest do not our decision on this since guards. carefully investigated All before em- trial, well-developed it was at does ployment____ employ- Most of them are career weight tend to lend conclusion 14.) perhaps ees.” So Plaintiff’s Exhibit No. Lange-Tindall rationale should not be extended guard promised "quality” to cover this case. higher quality is somewhat than the minimum despite theories its alternative investigation, other fire or arson ceed overlap in evidence.5 therefore, quite unlike the situation presented Tindall, in Lange and Moreover, potential preju- we think the past wrongful no similar conduct from impact of the here rela- dicial might improperly which it infer tively slight. Not factor does this propensity had a setting (To fires. weigh in favor of it also admission but contrary, it seems the information that that, persuades us if even the evidence was Hayne previously had worked for Pinker- admitted, erroneously error no reversible year ton’s for almost a without incident Hayne’s occurred. evidence as to might well have cast doubt on Simmons’ background consisted of information theory Hayne had set the fire as an Pink- application that he had lied on his “attention-getter.”) For these reasons we erton’s, negative presumably to hide such hold that the relating admission of evidence information as that he had not attended hiring practices Hayne’s background school, discharged high had been from the was not reversible error under the circum- times, Army going several after AWOL presented stances here. jobs for vari- had fired from several been (including, oddly enough, from ous reasons IV. Pinkerton’s, he had worked as where argues Pinkerton’s next that the district discharged guard previously for but court admitting Hayne’s erred in testimony work) spent jail— had time in missing falsely that he told a investiga- involving occasion for an incident on one tor that he passed had taken and poly- car, driving liquor in a and on another graph regarding examination the circum- infor- writing bad checks. While this for fire, stances of the fire. After the Pinker- certainly unfavorably reflected on mation Hayne ton’s asked to take a lie detector Pinkerton’s), (and it Hayne presumably on Chicago. test, test He took the hardly shocking or offensive as to is so apparently it was inconclusive for extrane- strong reaction from the elicit a emotional Hayne ous agreed reasons. then to take a Indeed, Hayne explained these cir-

jury. Indiana, second test but failed to make example, length, some cumstances at arrangements Nevertheless, to do so. instability in the attributing much of his Hayne investigator later told a Pinkerton’s employment history, as well Army and his that he had taken the second test in Indi- involving writing on as the incident checks passed trial, ana and had it. At over Pink- funds, fact that his insufficient objection, attorney erton’s Simmons’ elicit- permanent requiring illness mother had a Hayne ed from his admission that he had much of his time and him to contribute Unfortunately lied about matter. this caring resources to for her and financial testimony sufficiently ambiguous his sisters. implied Hayne could have either that test, taking lied about or that he had important, Most there was no passing lied about it.6 been involved with had.ever flatly express promises 5. The dissent qual- asserts that under Indiana as the result of about the law, least, stipulated ity very once Pinkerton’s of those services. At the acting scope employment enough within the of his existence of the contract here is to se- viable," theory longer verely Lange contract was "no and thus per- undermine and Tindall as relating hiring prac- the evidence to Pinkerton’s support declaring theory suasive a contract Hayne’s background tices longer was "irrelevant” "no viable.” "highly prejudicial.” We are unable to dis- testimony 6. The was as follows: cern the rationale for this conclusion. Neither you Q: And Pinkerton’s asked to take a lie Lange nor Tindall involved a claim of breach of test, they? contract, detector didn't and so neither case can stand they A: Yes did. proposition that an otherwise valid cause of you Q: request? And took that test at their completely action based on breach of contract A: Yes I did. evaporates party legitimate when a also has a you they Q: And then later asked to take proposition patently tort claim. That incor- test, they? another lie detector didn’t party rect where the has contracted for services

Although “the rule in the Sev ence to polygraph test, whether he took a passed enth Circuit is clear” that whether he such a admission or test. exclusion of polygraph evidence is within disagree. Assuming, arguendo, We the sound discretion of the trial judge, testimony relating polygraph exam Rumell, 213, United F.2d States v. evidence, was inadmissible as substantive (7th Cir.1981),for various reasons this dis Pinkerton’s has failed to note distinctions cretion has most often been exercised in between this case authority and the exclusion, circuit, which it favor of in this relies which seem see id. at to make the collateral evidence others, completely inappli- rule as in well deVries v. St. cable here. The apparently rule was devel- Co., Paul Fire and Marine Ins. 716 F.2d oped in conjunction particular type with a (1st Cir.1983). n. 8 Several cir of impeachment impeachment by contra- polygraph exclude — apparently cuits results Impeachment diction. by contradiction Indeed, per because of the entirely, id. simply involves presenting evidence that prejudice, danger of some courts ceived part or all of a testimony witness’ is incor- person’s willing evidence of a also exclude rect. if eyewitness Thus an to an auto unwillingness polygraph ness or to take a accident testifies that the car that caused examination, id. at 944-45. For these rea red, impeachment accident con- sons, argues, Pinkerton’s it would have tradiction relies on evidence that the car been error to admit any the results of actually yellow. The inference to be polygraph Hayne took as substantive drawn is not that the lying, witness was evidence of the cause of the fire at the but that the witness made a mistake of warehouse. The trial court did not admit fact, perhaps and so testimony may her Hayne’s testimony evidence, as substantive contain other errors and should be dis- however, but rather admitted it under Fed accordingly. counted 608(b) impeach eral Rule Evidence course, particular Of misstate Hayne’s credibility through cross-examina may may ment probative not be of the specific instance tion about of his conduct general witness’ accuracy, depending on (his test) polygraph lie bearing about circumstances, may may thus on his character for truthfulness or un not be worth the time it takes to establish truthfulness. Pinkerton’s contends that it. For this reason the collateral evidence improper admission, this was an basis for developed. rule example, In the above as may impeached because “a witness not be suming the color of directly the car was not by contradiction as to collateral or irrele any relevant to substantive issue in the vant matters elicited on cross-examina (e.g., case identity if the of the car were tion,” Lambert, United States v. 463 F.2d stipulated), presumably it would not be (7th Cir.1972). Since the test for worth the fact finder’s time to entertain a whether a matter is collateral is “whether color, “mini-trial” on the issue of the car’s party seeking pur to introduce it for simply prove that the witness was mis poses of contradiction would be entitled to taken as to this fact. while the prove case,” part id., it as of his and since accuracy of perception a witness’ or memo presumably Simmons could not introduce ry always through can be tested traditional polygraph evidence of the examination as a techniques, cross-examination the collateral part substantive of its evidence rule limits the extent to which the concludes that the “collateral evidence testimony witness’ about non-essential mat precludes rule” impeaching Simmons from may ters be contradicted proof. extrinsic Hayne short, is, manner that (that included a refer- if a matter is collateral if one, They only A: Q: asked me to story, you? take sir. You told him that didn’t you Q: you Do recall that told Mr. Robin- A: Yes I did. true, you Q: son after the first lie Hayne? detector test that Was that Mr.

passed No, the lie detector test in Indiana? A: it was not. II, A: Yes I p. do. Tr. Yol. judge, in the discretion of the con- trial as it could not be introduced into evidence sufficiently proba- important proof) proven sidered then it cannot be substantive testimony cross-examination; simply to contradict the witness’ tive to be elicited on 3 J. purposes. Weinstein impeachment confusion, of the yet, dangers because Berger, and M. Evidence Weinstein’s time; on, prejudice, waste of and so (1984). 607[05], 607-61—607-72 II inherent if would be a “mini-trial” on allowed, of that fact existence were extrin- evidence rule But collateral contends, not, prohibited.7 limit sic evidence matter is does scope types impeachment by all cross- Applying principles to the those matters examination testimony here, at issue it obvious becomes proven part as a of a could be substantive case; merely precludes extrinsic the collateral evidence rule—in one rather im 608(b)— of certain facts that would incorporated sense now into Rule types of peach by contradiction. Various prohibit testimony it. does con allowed, despite are the rec impeachment an incident in lied cerned subject-matter im ognition that having taken a examina polygraph about substantively, could not peachment be used or not took such a tion. Whether credibility precisely because witness’ passed may or whether or test not he Im always important consideration. have been admissible as substantive evi by prior statement peachment inconsistent Nevertheless, in discretion of dence. type example; another is the is one court, “specific of con instance on a at issue here—an attack impeachment was, understandably, he lied duct” which through character for truthfulness witness’ probative his character for considered of specific as to instances cross-examination Therefore, truthfulness untruthfulness. (which, of previous of the witness’ conduct proper inquire to allow to it was Simmons course, subject have not been of his the cross-examining the incident while about examination). direct course, the Hayne. Of denied 608(b),which Federal Rule of Evidence lie, on the use extrinsic evidence the bar of type impeachment, is exact- governs this specific instances of conduct to attack strike that the ly tailored to the balance 608(b) pro credibility in Rule have would designed to evidence rule was collateral proving the lie Simmons from hibited respect by impeachment achieve with to testimony through the of other witnesses. 608(b) Rule cross-ex- allows contradiction. however, not of proof, This sort in- specific aof witness about amination some Clearly, testimony carried fered. conduct, past probative her if stances of prejudice, clearly danger just untruthfulness, prohib- truthfulness obligated this to balance trial court was proof by of such extrinsic its the tes against probative value of risk Thus, as the collateral evi- evidence. so, The court and we think timony. did rule, bearing relevant on the a fact dence deciding properly exercised discretion case, credibility that he witness’ —in testimony elicited under could be past or other in the acted some has lied 608(b).8 veracity may, Rule that casts doubt on manner — Indeed, polygraph, instead of failed the second under even the collateral 7. it, test, by merely failing impeachment of a witness’ to take we note that Pinker- contradiction testimony generally not be considered would Once shares the blame for this confusion. ton’s elicited, thus be allowed —where damaging testimony collateral —and it would impeaching matter the witness’ indicates simple a for Pinkerton's have been matter J. Weinstein for untruthfulness. See character misrepresenta- clarify the circumstances Berger, & M. 607- Weinstein's 607[05], Evidence Presumably matter of as a tion on redirect. (1984). so; strategy, thus a it chose not to do trial appeal complaint about the confusion complaint response to well-taken. unfairly testimony may implied that have

V. From the time when a chattel is manu- use, factured to the time of its actual remaining contentions, may many there markets in which it is relating damages interest, do not sold. prices paid different by are merit extended discussion. The trial court wholesaler, the retail dealer and the instructed the measure of consumer. Since the measure of recov- damages partial per destruction of ery done, is determined property harm sonal is the difference between market that determines the property the fair market value of the imme measure of before, diately after, recovery by person immediately goods whose taken, Damages complete destruction. destroyed de been or detained is that personal property, struction of on the other to which he would have to resort in order hand, (fair are measured replace reasonable subject matter. Thus the market) property value of the at the time consumer can price; recover the retail of its destruction. Pinkerton’s dealer, acknowl the retail price. the wholesale edges this to be a correct statement of manufacturer, buy who does not See, Indiana e.g., law. Bottoms v. B M market, & price. receives selling his Corp., Ind.App., Coal 405 N.E.2d (Second) Torts, Restatement (4th Dist.1980). (d) (emphasis added). comment See also

Nevertheless, Halperin, H.K. Porter Pinkerton’s contends Co. v. 297 F.2d 442 (7th Cir.1961)(Illinois law). adopted that the trial court should have Pinkerton’s ad- case, damages different measure of in this mits it can cite no Indiana law to buttress manufacturer, imaginative because Simmons is a argument which its that we should replace destroyed goods was able to discard selling price the fair market value— stock, existing out of its and which claimed measure in this case. None of the other profits. no lost sales or Under authority persuasive these cir it offers is since it cumstances, says Pinkerton’s, “fair materially market involves questions, different value”—in this selling Simmons’ such as common ship- carriers’ price inappropriate pers, measure damages. because or wholesalers’ Thus we —is selling price profit margin, perceive includes a authority no reason based on yet not “earned” at the time the hold that the court’s instruction on dam- sitting merchandise ages the warehouse. was erroneous. Simmons deducted Thus Pinkerton’s would have us price selling award from the list the cost of selling price Simmons not the only inventory, taking thus account of the fact (which cost of remanufacturing goods inventory was still at the manufac- in Pinkerton’s distribution, view would not include turer’s level the chain of not “profit”).9 According to the Restatement at the wholesaler’s. The manufacturer’s Torts, general “profit hand, rule as to margin,” manufactur on the other seems profits ers’ properly its rationale are as manufacturing follows: to the attributable complains 9. Pinkerton’s also immediately, about Simmons’ have all been sold but at least price 1979, use of might lists dated in late through 1978 and 1979 as some of it have been sold ordinary least, selling price prices. very evidence of some of at the new At the the later damaged destroyed inventory. Although price sufficiently probative lists were of the val- admissible; objection, inventory Pinkerton’s has not elaborated on this ue of the to be so Pinker- argument prices argument really we take its to be only that since the ton’s weight is relevant for some of the items on the late 1978 and 1979 the evidence should have been accorded. presented objection lists included as much as a price 5% increase over the this to the 1978, prices September jury through that were in effect in lists to the cross-examination of occurred, price damages, the fire expert during when the later lists do Simmons’ ing argument clos- accurately argued not reflect specific figure the fair market value of even that a damages those items at the time of the fire. There is should subtracted from the to ac- testimony support problem. some the inference that count for this Since the evidence prices may appropriate price competent, have been an based on the lists was value, it, accept despite argu- measure of fair market since the invento- was free to ry destroyed damaged contrary. in the fire would not ments to the

607 process, primarily process computation involving of matical the subtrac The fact salvage proceeds distribution. that Simmons can tion of from actual and goods replace by manufacturing should average prices sales for the various inven profit margin not affect attributable to tory Dist.Ct.Op. items.” at 35. We do not manufacturing process. profit disputed think the fact that Pinkerton’s margin part inventory, is of the value as trial, use of various sales lists at for exam though, price, even like the rest of the it is price ple because some lists were from not realized until sale. fire, after the time of the invalidates the prejudgment claim for interest. We do not complains Pinkerton’s also about agree with Pinkerton’s characterization of judg the lower court’s amendment of the prejudgment ment to include Indiana’s “fixed and an award ascertainable” stan from the fire to the meaning interest the date of dard as that whenever more than entry judgment. 28 date U.S.C. figure represnting damages one this—in (1982) provides 1961 for an award of inventory case the value of —could money judgment interest on a whenever adopted, prejudgment may been no interest the law of the state in which the court sits be awarded. Pinkerton’s essential conten Although the permits such an award. stat principal damages tion that the amount explicitly post-judgment ute refers stipulated, must be or determinable with interest, reference is not intended to trial, amply refuted out eases prejudg plaintiff’s affect entitlement construing many Indiana law. cases In re Air ment interest under state law. prejudgment interest has been allowed Illinois, Chicago, Disaster Near Crash though even the fact finder had to use 1280, (N.D.Ill.1979), F.Supp. aff'd, 1282 480 degree judgment measuring some Cir.1981). (7th Prejudgment 644 633 F.2d See, damages. e.g., Luksus v. United Pa law is allow pursuant interest to Indiana Co., (7th Cir.1971) Ins. 452 F.2d 207 cific judgments diversity cases. able on (interest awarded from various dates that Co., v. Amoco Oil Price labor, services, rental of sums owed (S.D.Ind.1981). bonuses, later equipment, etc. were found law, due); Y, prejudgment Chicago St.L.Ry.

Under Indiana to be N. & Co. v. damages (1911) proper when are ascer Ind. 96 N.E. 468 Roper, interest is in accordance with fixed rules of (interest upheld tainable where measure of award accepted standards of valua damages fire was fair market value after accrue, damages Rauser at the time v. house); Industries, tion Inc. v. Indiana Inc., 437 F.2d 800 Electrosystems, Inc., LTV Products, Ind.App., 430 Wedge Cir.1981); Industries, (7th Indiana Inc. Dist.1982)(interest (3d N.E.2d 419 awarded Products, Inc., Ind.App. 430 N.E.2d Wedge though original inventory claim even Dist.1982), (3d appropri but is substantially damages from differed subse jury judg must use its best ate when awarded); quently sought, and from those past the amount for ment to assess Churchill, 140 Ry. N.Y. Co. v. Central or elements not measurable injury future (2d 426, Div.1966) Ind.App. N.E.2d 372 218 N.Y., by fixed standards of value. Chica (interest market allowed where fair value 497, St.L.Ry. Roper, v. 176 Ind. Co. go & tractor, though disputed, easily was of (1911). argues 468 Pinkerton’s 96 N.E. degree certainty); of ascertainable with test is not entitled Simmons that under 131, Powell, Ind.App. 111 N.E. 61 Kuhn v. interest, since here there prejudgment (interest (1916) despite dispute 639 allowed dispute over the amount of fide was a bona per of corn under over amount due bushel should have been awarded damages that contract). Thus, interpret we In unwritten inventory. of Simmons’ the loss for mean that dam diana’s standard to particu as of a ages must be ascertainable judge concluded that “the The trial (not actually prior ascertained lar time adopted by presented damages as trial) according of val- to known standards a function of mathe in its verdict were jury 608 (not liquidated amounts).

ue Courtesy See prejudice that it did not complaining Enterprises, Labs., Inc. v. Richards Ind. party. Otherwise, judgment should be App., (3d Dist.1983). 457 N.E.2d 572 Of reversed. Callahan v. New York Central course, degree assessment to which RR, 232, Ind.App. (1962); 134 183 N.E.2d 93 jury must judgment use its in ascer Moore, Southern Indiana RR v. 29 Ind. taining damages may in close cases dif 52, App. (1902). 63 N.E. 863 Thus in Indi ficult, say but we cannot the district court presumption ana there is a “radically abused its in deciding pre discretion jury erroneous” prejudicial instruction is judgment appropriate interest was here. requires that a granted. new trial be It cannot be doubted that Instruction No. Finally, complain defendants about 5 “radically was erroneous.” All but one the trial court’s refusal to direct a verdict section of the Indiana Licensing Detective Surety Corporation National Law were clearly irrelevant to this damages in case. excess of the amount of its $5,000 Even surety provision the one relevant good bond in favor of Pinkerton’s. —the surety liability provision Since conduct is contractual and can no relevance after —had not exceed the liability expressly amount of stipulated was act contract, surety assumed Orange ing scope within the employment his Brown, Ind.App. Co. 393 N.E.2d night all acts on committed of the fire. (1979), the lower court saw no need to majority notes, As the good direct a verdict to achieve that result. provision simply expands party appeal Since no contends that detective employer service to cover acts Surety’s liability National great should be employee committed for which the $5,000, er than neither do we. employer could not be held liable under the principles foregoing respondeat

For the traditional judgment superi- reasons the or, regardless is Affirmed. employee whether the negligently hired. See Stewart War Corp. ner v. Burns International Securi SWYGERT, Judge, Senior Circuit dis- Services, Inc., ty (N.D.Ill. senting. 1973). stipulated Once Pinkerton’s respectfully I disagree that the errors of Hayne acting scope within the of his giving Instruction incorporating No. employment, Hayne’s it was liable for in Law, entire Indiana Licensing Detective negligent tentional or regardless acts admitting and of regarding whether negligently hired. Hayne’s background and Pinkerton’s train- stipulation obviated the supervisory procedures were harm- necessity instructing on even view, my less. In either error alone consti- that small section of the statute. More ground tutes sufficient for granting Pink- over, majority concedes, as the that statute erton’s a new trial. imposes no employer duties on the outset, At the I note that a ques- serious respect checking job applicant’s back tion has been raised this case of whether ground. judge Thus the trial was not war federal law as set forth in 28 U.S.C. 2111 giving any part ranted in of Instruction No. (1982) governs or Indiana law the issue of nothing 5. And in the record demonstrates giving whether the an erroneous beyond doubt that Pinkerton’s was not requires instruction that Pinkerton’s be prejudiced by this instruction. Under Indi granted argues a new trial. Pinkerton’s law, ana Pinkerton’s is entitled to a new governs and, Indiana that law if it is cor- trial. rect, surely this case would have to be agree I with Pinkerton’s that state reversed. Indiana is law law clear that when erroneous,” governs “radically an instruction is the issue of whether the erroneous appear must from the beyond jury record doubt instruction constitutes reversible er-

609 Miller, Procedure, ror.1 harmless error rule is substan Federal The Practice § (1973). Traynor, tive The Riddle in nature. 2883 at 279 of (1970). Pro Error at As Harmless 47-48 if the jury Even instruction erroneous is observed, rule Ely has a substantive fessor analysis 2111, subject to under 28 U.S.C. non- right granted is for one or more “a I find that the would instruction affected reasons, procedural purpose for some rights” Pinkerton’s “substantial and that purposes having to do the fairness not possibility jury’s there was a “the litigation process.” the efficiency of understanding of the seriously issues was Erie, Ely, 87 Irrepressible Myth The of prejudice.” affected to the defendant’s 693, Here, (1974). the In 724 Harv.L.Rev. majority I am not as as is the its citi confident Supreme granted Court has diana provisions right their that the irrelevant of zens a substantive to have Instruction adjudicated by jury with properly apart good a No. from claims the sec- 5— spec a reviewing out fear that court will jury so tion—were irrelevant that the could proper in the event ulate as to the outcome They not have been confused or misled. such, jury As egregious of an instruction. agen- refer to specifically detective service inextricably rule is linked to Indiana cies, and, view, my in possible it is that the diversity proof of in issue of burden jury provisions could have that the believed party noncomplaining actions because Hayne. applied jury’s to chain of The rea- record evidence must demonstrate by Pinkerton’s, soning identified while ten- overwhelmingly establishes that absent uous, implausible not so inherently instruction the result would erroneous it should be dismissed out of hand. that in different. And it is clear have been Indeed, majority’s suggestion that the proof diversity the burden of is actions jury possibly could not have been confused governed by state law. Promo Product majority the fact is belied that the itself Cousteau, 483, tions, F.2d 489 Inc. v. 495 to feels the need define the term “licen- (5th Cir.1974). It is also beyond doubt see.” error rule controls the out harmless addition, majority’s “doubtful as- Hence, analysis Byrd of come. under sumptions,” 598, see ante at themselves Ridge Cooperative, v. Rural 356 U.S. Blue assumption on the doubtful that the rest 525, 893, (1958), 2 78 S.Ct. L.Ed.2d 953 No. 5 in jury considered Instruction careful to apply should the state rule federal court argument, At oral this court was detail. complaining party determine if the enti not receive jury informed that did v. tled a new trial. See also Southern instructions; thus, copy unlikely it is (11th Tools, 1321, 696 F.2d 1324 Plumb jury would able to re- that the have been Cir.1983); Psychiatric Institute Semler sufficiently upon the flect instructions (D.C. D.C., 922 Washington, 575 F.2d inapplicable. clearly them as discount Cir.1978); Conway v. Tank Chemical True, might argue jury would one 927, (5th Cir.1976) Inc., Lines, 525 F.2d 930 not under- simply ignore instructions it did federal (although court determines that But Instruc- stand or before them. applies, determining error rule harmless and, garble, No. 5 was not occurred, tion convoluted has court looks if error harmless view, my it can be under assumed that would have obtained to result attempt obligations Wright 11 A. law). But see & fulfill C. state applied simply of Indiana to the facts majority that federal law statement law as assumes 1. The light Lange giving particularly v. B & applies. characterizes the error It substance, Inc., (N.D.Ind. form, Express, 319 No. 5 as one of P Motor Instruction Enderle, 1966), Ind.App. Tindall v. recitation of presumably because verbatim (3d Dist.1974). Licensing Jones v. cor- N.E.2d 764 Detective Law was the Indiana Cf. Goodlove, (8th Cir.1964). However, F.2d giving 92-93 of the instruction rect. erroneous as instruction would have been matter because ás a of substance was incorrect if, example, judge Licensing the trial Law nor of form Detective matter Indiana neither the per applicable instruction back- negligence had recited relevant concept se were or out order. case. was not a correct wards of this It merits apply reasonably proximate coherent law that the cause cause would applicable. judge thought was Hayne if resulted failed to act as a reason- guard able would have acted under the majority Even if the correct were that majority circumstances. The admits this provisions substantially preju- did not statutory theory liability insofar as the Pinkerton’s, giving “good dice is concerned.2 provision” conduct of Instruction No. 5 con- prejudicial stituted reversible error. As I concede, however, I willing am have already noted, supra at unlike judge because the district instructed the Corp., Stewart Warner this case the jury that the “reasonable man standard” statutory good conduct instructions should guard and not the “reasonable standard” given. Notwithstanding, not have been governed properly Simmons was argued Simmons at trial that Pinkerton’s Hayne allowed to admit evidence that good under the provi- was liable not trained how to use the fire hose or fire imposed duty sion because that law on extinguisher, that Pinkerton’s failed to rec- job applicants’ Pinkerton’s to check into its security guard ommend an additional when backgrounds police and records. The dis- broken, the door was and Hayne’s judge trict understood that this was one of supervisors allegedly failed to inform him accepted Simmons’ theories of and extinguishers that several of the fire were permissible ground it as a for relief. As a empty. argument Simmons’sole under the result, permitted he Simmons to introduce theory Hayne contract was that had been regarding substantial evidence Pinkerton’s properly trained to equipment use this Hayne’s failure background. to check been informed empty about the True, opening closing arguments, its and extinguishers security or had an additional argue Simmons did theory not in con- guard duty, Hayne been on could have detail, argue siderable it did but that Pink- extinguished the fire before extensive dam- erton’s theory, was liable under this and age occurred. jury reasonably interpreted could have Hayne’s Pinkerton’s failure to check into However, information, all of the other as background provision as a violation of that concedes, majority was not relevant to and, hence, negligence per causing as se Hayne’s alleged inability effectively damage. Simmons’ combat the fire. This included information paid that Pinkerton’s low salaries to its giving The error in Instruction No. 5 was guards, charged customers a much compounded by further the introduction of higher price guards’ services, that it highly prejudicial, irrelevant ex- evidence: “marginal personnel,” hired and that tensive regarding evidence hir- Pinkerton’s gave guards training, its little or no ing, training, practices and supervisory little, any, opportunity if promotion. industry well as evidence of standards and magnified egregiousness Simmons’ Hayne’s background. law, Under Indiana hiring practices by showing Lange Inc., see B Express, v. & P Motor training an (N.D.Ind.1966); inane film that Pinkerton’s Tindall v. Enderle, showed to Ind.App. 524, employees, its new con- 320 N.E.2d 764 (3d Dist.1974), stantly referring procedures stipulated once acting scope employed within the Pinkerton’s should have accord- employment, statutory ing his Pinkerton’s own manual and to Pink- contract longer allegedly supervision theories were no erton’s inadequate viable and could addition, guards. be used as the foundation for the im- all of there proper evidence, Pinkerton’s, introduction of this be- irrelevant evidence that in con- agree majority hiring I do employer’s firing practices with the Lange apply rationale of solely and Tindall should not should be excluded when it is irrelevant to es- tablishing employer's liability because a contract claim is involved. See for an em- ployee's enough ante at encompass note 5. The rationale of both of those acts—is broad all highly prejudicial regard- cases—that in this case. claims industry and Pinkerton’s travention

standards, investigate Hayne’s failed to Gregory Alfred B. SHAPIRO and J. Wentz, Plaintiffs-Appellants, background, was a tran- job, not hold down a who sient who could extensively employment applica- in his lied DRUG ENFORCEMENT ADMINISTRA- tion, gone AWOL from the mili- who TION, Defendant-Appellee. twice, tary at least who was convicted for passing driving while intoxicated and for 82-2818, Nos. 82-2819. checks, previously bad and who had been Appeals, United States Court of employed suspicious at a location where Seventh Circuit. undoubtedly This fire occurred. evidence poorly Hayne, on Pinkerton’s and reflected May support and it did not in the least Simmons’ claim that Pinkerton’s was liable for the

damage caused the fire. disagree majority I with the prejudicial. is not likely more to find Pinkerton’s liable be- miserly employer cause it is a who over- customers, charged employed its who “marginal personnel,” and failed who up promises guards; its live to its person. was a This is because bad particularly plaintiff true because contin-

ually throughout referred to this evidence opening trial closing

arguments and because other evidence presented ineluctably at trial did not lead Hayne deliberately

the conclusion that set fight effectively. the fire or failed to view, my there is a substantial probability highly prejudicial that this irrel- impermissibly

evant evidence so infected verdict that defendant is entitled to a trial. new judgment

I would reverse the re- mand for a new trial.

Case Details

Case Name: Simmons, Inc., a Corporation v. Pinkerton's, Inc., a Corporation and National Surety Corporation, a Corporation

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 28, 1985

Citation: 762 F.2d 591

Docket Number: 84-1524

Court Abbreviation: 7th Cir.