Markley v. Snow

Opinion by

Me. Justice Fell,

The plaintiff was arrested for setting fire to the barn of J. W. Ellsworth & Company, a partnership engaged in selling and mining coal. After his discharge on the entering of a nolle prosequi by the commonwealth, he brought this action for malicious prosecution and obtained a verdict against the police officer who made the information on which the warrant was issued, the superintendent of the business and the paymaster at whose instance the arrest was made, and against the partnership. It did not appear from the testimony that any member of the partnership had assented to or authorized the prosecution, or had any knowledge of it. The arrest was not made until three months after the barn had been burned, and whatever the superintendent and paymaster did in relation thereto was wholly at their own instance. If the partnership is liable in this action, it is because of an act of its agents, done in the course of their employment. The instruction on this branch of the case is the subject of the first assignment of error. It was in substance that if the care and management of the property, especially of the barn and its contents which were burned, were committed to the superintendent and paymaster, it was their right on behalf of the company, when the barn was burned, to engage actively in ferreting out the perpetrator of the crime and to make an information; and if in so acting as representatives of the company they instituted an unfounded prosecution, their principal would be liable. The superintendent and paymaster, while called officers of the company, were in fact employees or agents of the partnership, charged doubtless with the management and care of its property at the mine, and the question raised by the assignment is whether the arrest of the plaintiff, three months after the barn had been burned, by their procurement, was an act within their implied power, done in the course of their employment.

Undoubtedly a principal may be held liable for the act of his agent in instituting a malicious prosecution. But the act of the agent becomes that of the principal only when expressly authorized, or when his authority to act may fairly be inferred from the nature and scope of the employment. Generally the duty of superintendence does not carry with it the duty to arrest or prosecute. The inference of authority to do either does not arise from the mere fact of the agency. The authority may be implied when the arrest is made by the agent in the absence of the principal for the protection of property that is in danger, and in some cases it has been inferred when the arrest was to recover the property back, or where the crime was at the time being perpetrated. But where the act is done for the punishment of the supposed criminal, or for the vindication of the law, it is not the act of the principal and does not subject him to liability. This principle has been uniformly recognized in the decisions on the subject, and whatever lack of harmony there is in the cases has resulted from the difficulty of applying it to the particular facts. Railroad companies.have been held liable for the unlawful arrest of passengers by conductors for nonpayment of fare: Krulevitz v. Eastern Railroad Co., 140 Mass. 573 ; ^* Kelly v. Traction Co., 132 N. Car. 368 ; and for arrest for breach of the peace: Ruth v. St. Louis Transit Co. (Mo. App.), 71 S. W. Repr. 1055 ; and the employer for the arrest by. a superintendent for shoplifting detected, it was supposed, in the act: Staples v. Schmid, 18 R. I. 224,^† and by a floor walker: Mallach v. Ridley, 43 Hun, 336; for the arrest by a manager of a labor agent for passing through a mill and persuading men to quit work: Smith v. Munch, 65 Minn. 256; ^‡ for the arrest by a ticket agent of a traveler on the charge of passing counterfeit money: Palmeri v. Manhattan Railway Co., 133 N. Y. 261; ^§ Eichengreen v. Railroad Co., 96 Tenn. 229 ; ^|| for an arrest by a ticket seller on the charge of causing disorder in a theatre: Dickson v. Waldron, 135 Ind. 507; ^¶ and in similar cases where arrests were made by watchmen, roadmasters, and others charged with like duties.

On the other hand, the trend of decision is against holding the principal liable when the arrest has been made after the supposed crime had been committed, and not for the protection of his property or interests. In such cases the agent has been presumed to have acted on his own account, for the vindication of justice. There has been no direct ruling on the subject by this court, but the recent case of Croasdale v. Von Boyneburgk, 206 Pa. 15, in which it was held that the managing owner of a vessel has no implied authority to institute criminal prosecution for embezzlements, is within the principle stated." There are numerous decisions on the question in other jurisdictions. In Pressley v. Mobile, etc., Railroad Co., 15 Fed. Repr. 199, the company’s land agent, who was vested with extensive powers of sale, lease and collection of income, caused the arrest of the plaintiff on the charge of spoliation of timber lands. It was held that in so doing he was not acting within the scope of his agency, and the company was not liable. In Mulligan v. N. Y. & Rockaway Beach Ry. Co., 129 N. Y. 506, ^* †a ticket agent had been notified by the police to watch out for certain counterfeiters, and caused the arrest of a person whom he thought had tendered him a counterfeit note. In referring to this case it was said in Palmeri v. Railroad Co., 133 N. Y. 261: ^† “We held that the company was not responsible in damages, because the agent was not, in what he did, acting within the scope and line of his duty. His acts were not such as could be deemed to be performed in the course of employment, or such as were demanded for the protection of his employer’s interests, but rather those of a citizen desirous of aiding the police in the detection and arrest of persons engaged in the commission of crime.” In Edwards v. London & North Western Railway Co., L. R. 5 C. P. 445, it was decided that a railroad company was not liable for the action of a porter who had temporary charge of its yard in arresting a teamster whom he suspected of 'stealing lumber. Similar rulings were made in Larson v. Fidelity Mut, Life Assn., 71 Minn. 101; Tolchester Beach Improvement Co. v. Steinmeier, 72 Md. 313; Travis v. Standard Life & Ins. Co., 86 Mich. 288 ; Mali v. Lord, 39 N. Y. 381; and

Carter v. Howe Machine Co., 51 Md. 290. In Allen v. London & South Western Ry. Co., L. R. 6 Q. B. 65, it was said by Blackburn, J.: “ There is a marked distinction between acts done for the purpose of protecting property by preventing a felony, or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person whom he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property, it is done merely for the purpose of vindicating justice.”

The liability of the principal for the act of his agent in instituting an unfounded prosecution is governed by the general principles of agency, and where there is no express authority and there has been no subsequent ratification of the act, the ultimate test is whether the agent acted within the scope of his implied authority. In determining this, each case must stand on its own facts, and in some the question will be one of serious difficulty and doubt. But in this case it may safely be said that there was no presumption of authority from the mere fact of the agency, to make an arrest three months after the supposed crime had been committed, and when there had been the fullest opportunity in the meantime for the- agents to confer with their principal.

The second assignment of error is to the answer to the defendants’ second point. The court was asked to instruct the jury that if at the time the prosecution was instituted, Miller, one of the defendants and the superintendent, had knowledge of the facts set forth in the point, he had probable cause for instituting the prosecution. The answer given was “ Affirmed, unless the jury find that there were other facts satisfactorily proven in this case which ought to have convinced Miller as a reasonably prudent man that he could not honestly rely upon the facts enumerated in the point.” If, as is argued, the effect of this answer was to submit the whole question of probable cause to the jury, it was error, as it always is for the court to say whether a given state of facts constitutes probable cause. But this was not its effect. The jury were not permitted to find whether other facts in connection with those enumerated made out a defense of probable cause, but whether there were other facts that should have convinced Miller that he could not rely on the facts stated. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a prudent man in believing the accused guilty. It is not determined by the existence of facts alone, but by the prosecutor’s belief in them, and the reasonableness of his belief. If he knows that statements tending to implicate the accused are untrue, or if they are impeached by other facts within his knowledge, or are discredited because of the source from which they come, they furnish no ground of defense, because as to the prosecutor they were not a ground of belief. “ The prosecutor must himself believe and the belief must be on reasonable grounds : ” Note to Munns v. Dupont, 1 American Leading Cases, 265. There were other facts, and the plaintiff’s contention at the trial was that they so modified the facts relied on to establish probable cause that no reasonable belief could be based on them.

The third assignment to the refusal of the court to direct a verdict for the defendants cannot be sustained, since the good faith of the prosecution, notwithstanding the facts relied on as indicating guilt, was called in question by the testimony.

We reverse the judgment on the first assignment of error and judgment is now entered in favor of J. W. Ellsworth & Company. As to the other defendants, against whom a verdict was rendered, we grant a venire facias de novo.

* Also reported 5 N. E. Repr. 500.

† Also reported 26 Atl. Repr. 193.

‡ Also reported 68 N. W. Repr. 19.

§ Also reported 30 N. E. Repr. 100.

|| Also reported 34 S. W. Repr. 219.

¶ Also reported 34 N. E. Repr. 506.—Reporter.

* Also reported 29 N. E. Repr. 952.

† Also reported 30 N. E. Repr. 1001.—Reporter.