Young v. L. B. Price Mercantile Co.

*413 Anderson, J., delivered the opinion of the court. Appellant brought this action in the circuit court of Hinds county against appellee to recover damages for a malicious prosecution alleged to have been instituted by appellee against appellant. At the conclusion of appellant’s testimony, on motion of appellee, the court excluded all of appellant’s evidence and directed a verdict and judgment in favor of appellee. From that judgment appellant prosecutes this appeal. For the purposes of the question to be decided, the following is deemed a sufficient statement of the case: Appellee operates a number of chain stores in Mississippi and other states. It sells its goods through peddlers who travel the country for that purpose in automobiles. Appellant was one of its peddlers. Mr. Morris was appellee’s district manager with headquarters at Jackson; he had general supervision over appellee’s stores in his district. His district consisted of Mississippi and probably parts of Louisiana and Arkansas. Mr. Matthews was the manager of one of appellee’s stores at Leland, in Washington county. For certain reasons Morris directed appellant to turn over to appellee his peddler’s stock of goods. Appellant refused to do so, claiming that appellee owed him commissions for goods already sold; he agreed to turn the goods over to appellee when these commissions were paid. Morris undertook to show appellant that this could not be done until the claim went through the usual routine, which would take some time. On appellant’s failure to turn over the goods, Morris instituted in the court of a justice of the peace of Hinds county a prosecution against him for embezzling the goods.' Appellant was arrested and imprisoned in Hinds county for some days. Later, Matthews, appellee’s store manager at Leland, instituted the same character of proceedings against appellant before a justice of the peace of Washington county, based on the same facts, whereupon appellant was taken to Washington county and kept in jail for some days. Appellant was never tried in either *414 of the prosecutions. He was turned out of jail in Washington county without any order or judgment of any court, sopfarp.as the record shows, and it is not shown clearly on whose order appellant'was given his liberty; however, there is an entire absence of any evidence tending- to- show-that appellee had anything to- do with either of the prosecutions, knew of either of them, or in any•wise authorized or ratified either of them. Appellee’s position is that Morris and Matthews, its agents, were acting without the scope of their authority in instituting these prosecutions, and therefore there is no liability therefor on its part. It should be borne in mind in considering this question that Morris was the district •manager or superintendent of appellee’s chain of stores in Mississippi and certain adjacent territory, and that Matthews was the manager of one of its local stores at Leland. In other words, each store had its own manager, and Morris was the manager over the whole. The courts are divided as to whether the master is liable under such a state of facts. In discussing the question, Labatt, in his work on Master and Servant (2 Ed.), volume 6, section 2469, used this language: "The theory which seems to be embodied in several American decisions is, that a general or departmental manager possesses, by virtue merely of the functions ordinarily intrusted to such an agent, an implied authority to arrest or prosecute a person whom he believes to have done something which prejudicially affects the property of his principal. The cases cited below indicate that this view has been adopted in Scotland and Quebec also. "On the other hand, the doctrine that, even where an employee-of this rank is concerned, it cannot be presumed from the sole circumstance of the position held by him that he was empowered to- take such a proceeding on behalf of his employer has been adopted in England, and also in nearly all the British colonies in which the matter has been discussed. A similar view has been adopted in *415 Alabama, Illinois, Maryland, Michigan, and Pennsylvania. . . . “As several courts of the highest authority have pronounced in favor of each of the conflicting doctrines reviewed above, a commentator cannot, without undue presumption, offer any decided opinion regarding the matter. It will be sufficient to say that, in the opinion of the present writer, the preferable theory is that which treats the discharge of managerial functions by an employee as being an element which does not of itself justify the inference that he is impliedly authorized to put the criminal law in motion against an actual or supposed offender. That this general rule will ultimately be conceded by the courts which follow it to be subject to some qualifications is extremely probable. So much, it is apprehended, may reasonably be inferred from the suggestions thrown out in the judgment delivered in one of the English cases. It may fairly be contended that the master should, at all events, be held liable for the acts of a tort-feasor who is, in the proper sense of the expression, his alter ego, vested with full discretionary powers in regard to the conduct of the business and all its incidents. ’ ’ In the same volume, section 2472, the author states that employees authorized to demand and receive money owed their employers cannot subject the latter to liability for damages “on the mere ground of the functions normally discharged by them.” Labatt shows that the rule which he thinks is the sounder and better has been adopted in England and nearly all the British colonies, and in Alabama, Illinois, Maryland, Michigan, and Pennsylvania. Our court has aligned itself with those courts. Fisher v. Westmoreland, 101 Miss. 180, 57 So. 563, Ann. Cas. 1914B, 636; Russell v. Palantine Ins. Co., 106 Miss. 290, 63 So. 644, 645, 51 L. R. A. (N. S.) 471; and Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405, which is less in point. The first two cases are directly in point. In the first ease cited, the person instituted the alleged malicious prosecution had the custody, control, management, and the power to sell a sawmill plant. He insti *416 tuted a prosecution against the plaintiff in the case for the theft of a part of the machinery of the plant. The prosecution failed. Thereafter the person prosecuted brought an action against the owner of the sawmill for damages for malicious prosecution. The court held that the owner of the sawmill was not liable. In the second case referred to, Klein was the district agent of the insurance company, authorized to check up and settle with local agents of the company and collect from such agents the premiums going to the company. He found Bussell, the plaintiff in that case, short on premiums due the company. Bussell failed to pay on demand. Klein instituted a prosecution against him for embezzling the premiums. The prosecution failed. Bus-sell sued the insurance company for malicious prosecution based on that action of Klein’s. The court held that the insurance company was not liable. In discussing the question the court used this language: "Mr. Klein was employed by the insurance company to collect its claim against appellant, and he was authorized to employ all appropriate means to accomplish this end; and, while the agent is employing appropriate means to carry out his master’s business, the master is responsible for his acts. Certainly it cannot be said that a criminal prosecution is a means appropriate to the collection of debts. In Dally v. Young, 3 Ill. App. 39, it is said: ‘Where an agent institutes a malicious prosecution of his own head, and without the instigation or directions of his principal, the latter will not be liable for the same, unless he adopts and continues the same with knowledge, of all the circumstances.’ "Should we hold that appellee was responsible for the acts of Klein, it would be to hold, when an authority to collect a debt is shown, the law will imply the authority to' institute criminal proceedings against the debtor in case the debtor fails or refuses to pay. We do not believe that this is sound in reason or in law.” The evidence in this case neither showed nor tended to show that Morris was appellee’s alter ego, vested with *417 full and complete discretionary power in regard to the conduct of appellee’s business, and all of its incidents. In such a case a different rule might apply. We do not decide that question. Affirmed.