Marcus v. Gimbel Bros. , 231 Pa. 200 ( 1911 )

Opinion by

Mr. Justice Elkin,

This is an appeal from the judgment of nonsuit directed to be entered by the learned court below and from refusal upon motion made to set the same aside. The suit was brought to recover damages for injuries sustained by reason of an alleged assault and battery upon the wife of appellant under the following circumstances. His wife was engaged in the business of dressmaking and in pursuit of her business had purchased some silk from the appellee corporation. The silk proved to be unsatisfactory and Mrs. Marcus, the wife, went to the department store of appellee where she saw the president and made her complaint to him. He referred her to the superintendent, saying, “My child, I am very sorry, only you have to go in to the superintendent and whatever he says goes.” She testified that the name of the superintendent mentioned was Mr. Barrett and that she immediately waited upon him as directed by the president. Mr. Barrett called in Mr. Frutchey who had charge of the silk department and the question of the defective silk was discussed between them, with the result that it was agreed to furnish eighteen yards of silk from which should be taken enough to supply the place of that which was defective and about which complaint was made. This arrangement was carried out. The offer was made to prove by Mrs. Marcus that on the next day Mr. Barrett telephoned her that she had misrepresented the facts to him and that George Hoffman, an employee of the appellee company, would be sent for the silk, which would be taken by force if necessary. Sometime thereafter, on the same day, Hoffman went to the house of Mrs. Marcus, demanded the silk, and in endeavoring to obtain it, committed the alleged assault and battery about which complaint is made. The first, second, third and fourth assignments relate to the refusal of the trial judge to admit the testimony of Mrs. Marcus tending to prove what Mr. Barrett said over the telephone as to sending Hoffman for the silk; what he would do if necessary to regain possession of it; and what he actually did when he called for it. All of these offers were objected to by counsel for appellee and the objections were sustained by the trial-judge mainly on the ground that the evidence failed to show that the acts complained of were committed within the scope of the authority of either Barrett or Hoffman acting for and representing the appellee corporation. The question for determination here is whether error was committed in refusing to admit these offers of testimony. The general rule is that a master is liable for the tortious acts of his servant done in the course of his employment- and within the general scope of his authority. The presence or absence of the master when the wrongful act is committed, and whether it is done with or without direct authority, does not affect the question of liability to the party injured, if the acts complained of were done in the performance of the duties for which the servant was employed. If, on the other hand, the wrongful act, resulting in the injury, was done by the servant outside of his employment and not in pursuance thereof, but in order to gratify the ill will or malice of the servant, .the master is not liable, although the servant may at the time be in his employment: McClung v. Dearborne, 134 Pa. 396; Brennan v. Merchant & Co., 205 Pa. 258. Indeed, this rule is recognized by text writers generally and applied in all jurisdictions. Whether a servant acts within or without the scope of his authority depends upon the facts in each particular case and when the facts are disputed the question is for the jury: Guinney v. Hand, 153 Pa. 404; Moon v. Matthews, 227 Pa. 488. Whether Hoffman was acting within the scope of his authority under the facts proved, or offered to be proved, was a question for the jury. He was an employee of appellee and was sent with some kind of instructions to reclaim the silk in the possession of Mrs. Marcus who testified that Mr. Barrett had notified her by telephone that Hoffman would call for it that day and if necessary take it by force. He did call for the silk that day and appellants offered to prove that he took it by force, thus causing the injuries about which complaint is made. Certainly, under these circumstances, it was for the jury to determine whether Hoffman was acting within the scope of his authority. It is . contended that the burden of showing that Barrett was the agent or servant of appellee, and the extent of his authority, was upon the appellants. If it be conceded that this is the correct rule the evidence was sufficient to submit to the jury on the question of his authority. Mrs. Marcus testified that the president of the corporation referred her to Barrett as superintendent, saying “whatever he says goes.” After her interview with Barrett, the silk was given her, she took it home, and then followed all the acts about which complaint is made. If this testimony is believed, it is sufficient to warrant a finding by the jury that Barrett was authorized to act for and represent the appellee and that in pursuance of his authority he directed Hoffman, another employee, to take possession of the silk by force if necessary. If Hoffman acting by direction of Barrett who represented the company committed wrongful acts in the performance of the duty thus required of him, it was for the jury to say whether these wrongful acts were done in the course of his employment and within the scope of his authority. We see no escape from this conclusion. It may be that upon a trial of the cause the appellee will produce testimony to contradict the material facts relied on by appellants, but if so, it will still be for the jury to pass upon the credibility of witnesses and determine the questions of fact involved in arriving at a proper verdict.

It is argued that what Barrett said to Mrs. Marcus over the telephone should not be admitted as evidence in any way binding upon appellee. This position is asserted upon two grounds, first, that Barrett was not the agent of appellee, and, second, even if an agent, the principal is not bound by his declarations. As to the first position, we have already said there was sufficient evidence, if believed by the jury, to warrant a finding that Barrett in this particular transaction was authorized to act for and represent the appellee. _ The second position is also free from difficulty. The declarations of an agént while transacting the business of his principal, are evidence against the principal, not as mere declarations, but as explaining the character and quality of the act: Dick v. Cooper, 24 Pa. 217. In the case at bar if the jury should determine that Barrett had authority to represent appellee in adjusting the complaint of Mrs. Marcus about the silk purchased, what he said and did while so acting, may be shown at the trial for the purpose of explaining the transaction and as bearing upon the question of his authority. It will not be helpful to pursue the discussion further. We think the excluded offers of testimony should have been admitted and that the questions of fact raised are for the jury with proper instructions by the court as to the law applicable thereto.

Assignments of error sustained, judgment reversed and a venire facias de novo awarded.