Mali v. . Lord , 7 Trans. App. 174 ( 1868 )

The question, whether the plaintiff was detained and searched against her will, was conclusively settled in her favor by the verdict. The evidence fully warranted the submission of this question to the jury. There was no prosecution against the plaintiff instituted, calling in the policeman, and informing him of the suspicion entertained against the plaintiff, and of the facts upon which it was grounded, had not the semblance of a criminal prosecution, and, consequently, whether these, and the subsequent acts, were done in good faith on the part of the superintendent, or maliciously, were only material upon the question of damages, provided, the defendants were liable therefor. The utmost good faith, and the firmest belief, that a person has stolen, and secreted about his or her person goods, will not justify the owner in detaining and searching the suspected person; consequently, the acts of the superintendent of the defendants cannot be justified upon these grounds, nor this action barred, if the defendants are responsible for his acts in this respect. Calling in the policeman, and his presence and participation, affords no justification. The policeman had no right to order the search of the plaintiff by the female, and he could confer no power upon any one to make the search. The exceptions taken to the judge's ruling upon these questions were correct. The material question upon the merits is, whether the defendants were liable for these acts of their superintendent. A master is responsible, civilly, for the fraud, negligence, or other wrongful act, of his servant, committed in the transaction of his business. This is the general rule. (Griswold v. Haven, 25 N.Y. 526, and cases cited.) He is not responsible for the willful injury committed by the servant, while so engaged, unless such injury results from the business transacted by the servant for his master. (Wright v.Wilcox, 19 Wend. 343, and cases cited; Hibbard v. The N.Y. Erie R.R. Co., 15 N.Y. 455.) In the former case, it was held, that the master was not responsible for an injury caused by his servant in willfully driving his wagon over a person. That, in doing such an act willfully, the servant was not engaged in his master's business, but had, in respect to this act, departed therefrom. In Griswold v. Haven (supra), it was held, that the principal was responsible for the fraud of his agent, committed in transacting the business of the principal. InSanford v. The Eighth Avenue R.R. Co., it was held, that the master was responsible for the act of his servant in wrongfully ejecting a passenger from the train, and responsible, also, for any acts of aggravation in doing the act causing an injury to the passenger. This judgment was based upon the principle, that a part of the duties of the servant was to exclude from the cars such passengers as refused to pay fare, or to comply with the regulations adopted by the company; and that, having authority from the master to perform such acts, all such acts done by the servant were to be regarded as done by virtue of this authority, and in the execution of the master's business, and that, consequently, the master was liable for all injuries sustained from the wrongful acts of the servant in their performance. Applying these principles to the present case, the inquiry is, whether a merchant, by employing a clerk to sell goods for him in his absence, or a superintendent to take the general charge and management of his business at a particular store, thereby confers authority upon such clerk or superintendent to arrest, detain and search any one suspected of having stolen, and secreted about his person, any of the goods kept in such store. If he does, he is responsible for such acts of the clerk or superintendent. If not, then such acts are not within the scope of the authority delegated to the superintendent, and the employer is not responsible therefor, for the reason, that, while in their performance, the servant is not engaged in the business of the master, any more than in committing an assault upon, or slandering, a customer. In examining this questions, it must be assumed, that, by the employment, the master confers upon the servant the right to do all necessary and proper acts for the protection and preservation of his property, to protect it against theives and marauders; and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed, that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present. The master would not, if present, be justified in arresting, detaining and searching a person upon suspicion, however strong, of having stolen his goods, and secreted them upon his person. The authority of the defendants to the superintendent could not, therefore, be implied from his employment. The act was not done in the business of the defendants, and they were not, as masters, responsible therefor. If not responsible, if the superintendent acted in good faith in the belief of the plaintiff's guilt, they clearly would not be, if he acted from malice, in the absence of such belief. The plaintiff having, at the time of resting, given no evidence connecting the defendants with the clerk and superintendent, except their employment by the former, the motion of defendants for a dismissal of the complaint should have been granted by the judge, and the exception to his refusal was well taken. The attempt in the answer to justify the act was no evidence against the defendants upon the issue presented by the denial of having committed the acts. The only remaining question upon this part of the case is, whether, at any subsequent stage of the trial, the defect in the plaintiff's proof was supplied. All the evidence given, having any such tendency, was the answer of one of the defendants to the question: "Has it not occurred sometimes in your store, that your clerks have arrested persons suspected of having purloined goods?" To which the witness answered: "I believe it is very likely;" and to the further question: "Whether done by authority of the foreman?" To which he answered: "Not by my authority as one of the firm, I never gave any such instructions;" and his answer to a further question, "that he had never witnessed such an occurrence." This was clearly insufficient to charge the defendants. The judgment must be reversed upon the exception to the judge's refusal to grant the motion to dismiss the complaint. The other exceptions it is unnecessary to examine.

Judgment reversed.