Callahan v. Hyland , 59 Ill. App. 347 ( 1895 )

Mb. Justice Shepabd

delivered the opinion of the Court.

This was an action of trespass brought by the appellant against the appellee Hyland and one Joseph Gegan, the latter of whom was not served and did not appear or defend.

At the conclusion of the evidence on behalf of the plaintiff, appellant, the court instructed the jury to find the defendant, the appellee Hyland, not guilty, and judgment was given accordingly.

Hyland was a publisher of books, which he sold on what is known as the installment plan. One Mrs. Hathaway, a tenant of the appellant, purchased two volumes from an agent of Hyland, paying one dollar down and agreeing to pay six dollars more in monthly installments of one dollar each, with an option to her to pay five dollars at one time in discharge of her agreement.

Before the first monthly installment of one dollar became due, Mrs. Hathaway exercised the option and paid five dollars to Hyland, at his place of business, and obtained a receipt in full.

Shortly after having done so, Gegan, who was an agent of Hyland, called at Mrs. Hathaway’s home to collect an installment, and was told by the latter that she had paid in full, and Gegan expressing a doubt of her truthfulness, she showed him the receipt.

He still doubted, and she thereupon told him she could still further prove the payment by the landlady, the appellant, who lived in the front house on the same lot on which her house stood in the rear. They then went into appellant’s house and Gegan was there told by appellant that she knew the money had been paid, and referred him to the receipt held by Mrs. Hathaway, which was again exhibited to Gegan. Gegan being probably drunk, persisted in his demand for money, and became abusive and vociferous in his language to the women. The appellant then told Mrs. Hathaway to take her receipt and go away and take Gegan away; that she could do nothing with him; and Mrs. Hathaway then went down the stairs, leaving Gegan at appellant’s kitchen door.

Gegan then turned on appellant and saying that he had come to get the money or the books, he seized her and said he would take a little' money out of her, and commenced beating her. The noise and confusion brought assistance and Gegan was taken away by the police.

The question is, was Hyland responsible for the acts of Gegan.

It is not disputed but that Gegan was Hyland’s agent to go to Mrs. Hathaway’s and get the money or the books, and that he said to the women that he was going to get one or the other.

The inference from the evidence is irresistible that the attack by Gegan upon the appellant was wanton, willful and malicious. He was not sent to obtain anything from her. To hold Hyland responsible for the beating of her by Gegan would be tantamount to holding that he would have been responsible for an attack by Gegan upon any person the latter might have met while proceeding to or from Mrs. Hathaway’s.

It is only for the torts that occur in the course of the agency that the principal is liable. He is not liable for the torts of his agent in any matter beyond the scope of the agency, unless he has expressly authorized them, or has subsequently ratified them. Story on Agency (9th Ed.), Sec. 456; Mechem, on Agency, Sec. 737; Fuller v. Voght, 13 Ill. 277; Wood v. Williams, 142 Ill. 269.

It was the lawful right of Hyland to employ an agent to make collections of money for books sold, and to demand a return of the books in case the money was not paid; and although in this case there was a mistake made by somebody with reference to Mrs. Hathaway having paid in full, the lawfulness of the agency was not thereby affected. But such agency did not extend to the committing of an assault and battery in order to get either, and an agency to do so will not be presumed from the fact that it was committed.

We held in Titcomb v. James, 57 Ill. App. 296, which was a case where one partner was sought to be held for the tortious conduct of another in trying to take possession of mortgaged chattels, that the agency of a partner does not extend to the doing of wanton, malicious or cruel acts, when such is not the ordinary or usual course employed by the firm, and that while, as a rule, partners are bound by the contracts with each other when made in the scope of the firm business, they are not generally answerable for the wrongs of each other; and that a willful tort of one partner is not in and by force of the partnership alone imputable to the firm.

The law with reference to the torts of an ordinary agent is certainly no broader than that applicable to the agent who is such because he is a partner.

The willfulness and maliciousness of the acts of Gegan can not be ascribed to Hyland under any evidence appearing in the' record, and we think the action of the court in taking the case from the jury was entirely proper. Phillips v. Dickerson, 85 Ill. 11; Alschuler v. Schiff, 59 Ill. App. 51.

The judgment of the Superior Court is affirmed.