Lamm Ex Rel. Lamm v. Charles Stores Co.

BkogdeN, J. Is a mercantile corporation liable in damages for the act of the general manager in issuing a warrant upon a forged check, supposed by him to have been given by a customer of the corporation? There is ample evidence for a jury to find that the check in controversy was a forgery, and that the plaintiff had never been a customer of the defendant. A correct application of the principles of law governing the transaction rests entirely upon whether Long, the general manager of defendant corporation, was acting wholly beyond the scope of his employment in writing the letter complained of and in procuring the warrant for the arrest of the plaintiff. Much has been written upon the scope of -employment, and the general outlines of the doctrine have been clearly marked. The term is elastic and correct interpretation and application thereof must always depend upon the- variability of given facts. This legal variability has produced in this jurisdiction two well marked lines of decisions. The liability line is represented by the following decisions: Lovick v. R. R., 129 N. C., 427; Jackson v. Telegraph Co., 139 N. C., 347; Bucken v. R. R., 157 N. C., 443; Fleming v. Knitting Mills, 161 N. C., 436; Cotton v. Fisheries Products Co., 177 N. C., 56; Gallop v. Clark, 188 N. C., 186; Kelly v. Shoe Co., 190 N. C., 406; Colvin, v. Lumber Co., 198 N. C., 776. The nonliability line is represented by the following decisions: Moore v. Cohen, 128 N. C., 345; Daniel v. R. R., 136 N. C., 517; Sawyer v. R. R., 142 N. C., 1; Roberts v. R. R., 143 N. C., 176; Dover v. Mfg. Co., 157 N. C., 324; Marlowe v. Bland, 154 N. C., 140; Strickland v. Kress, 183 N. C., 534; Grier v. Grier, 192 N. C., 760; Ferguson v. Spinning Co., 196 N. C., 614; Cotton v. Transportation Co., 197 N. C., 709; Martin v. Bus Line, 197 N. C., 720. There is an extensive annotation upon the general subject in 35 A. L. R., 637. See, also, Md. Casualty Co. v. Woolley, 36 Fed. (2d), 460. The plaintiff bases her right to recover upon three major facts: (a) That Long was general manager of the defendant, and therefore, clothed with extensive discretion; (b) That many checks were taken by Long in payment of merchandise; (c) That the letter was written upon the stationery of defendant, and that in writing the letter and issuing the warrant, the manager was thereby intending to benefit his employer and safeguard its rights. *138 In Kelly v. Shoe Co., supra,, Varser, J., said: “The designation ‘managed implies general power, and permits a reasonable inference that he was invested with the general conduct and control of the defendants’ business centered in and about their Wilmington store, and his acts are, when committed in the line of his duty and in the scope of his employment, those of the company.” Obviously, it is not the size of the job that the offending agent holds which determines liability, but the quality of the act done in the line of duty. This essential distinction was noted in Grier v. Grier, supra, where it is written: “But liability in such cases is not ordinarily imposed upon the employer, by reason of the extent of the authority of the agent, but rather upon the purpose of the act and whether it was done in the furtherance of the employer’s business or was reasonably incident to the discharge of the duties entrusted to the employee.” Strickland v. Kress, supra. Nor does the fact that Long, as manager, had received checks from other people in payment of merchandise, have any bearing upon the principle of law involved in this appeal, because plaintiff denies that any cheek was given. Neither is the fact that Long used the stationery of defendant determinative. Certainly, he was authorized to use it in the line of his duty, and the heading upon the stationery neither added to nor subtracted from his power as manager of the store. In the final analysis, the whole controversy reduces itself to the inquiry, was Long acting in the line of his duty when he wrote the letter forty-six days after the transaction, and procured the issuance of a warrant one hundred and nine days after the transaction? The undisputed evidence is to the effect that the defendant conducted a cash business. However, as the defendant contends, the plaintiff made a purchase and gave a check in part payment therefor, receiving - the balance in cash. Then the check became an account due the defendant. There is no evidence that Long had ever collected an account from anybody or that any merchandise had ever been sold upon credit. Even if Long had authority to collect accounts, or such was within the line of his duty, resort to the criminal law by the agent, without the advice, counsel, or participation, knowledge or ratification of the principal, was not incidental to such collection. Moore v. Cohen, supra; West v. Grocery Co., 138 N. C., 166. The plaintiff insists that she did not sign the check, and furthermore, that she had never been in the store of defendant. Hpon motion of non-suit this view must be adopted. Hence it follows that the agent of defendant, without any justification and without the sanction of any sort of business transaction, undertook to invoke the criminal law against the plaintiff either by reason of mistaken identity or by virtue of a reckless notion that she had committed a crime. All the authorities are in agreement that if the agent, of his own notion, undertakes to set *139 in motion tbe machinery of the criminal law to avenge an imagined wrong against his employer, that such act does not impose liability upon the employer unless such employer authorized or ratified the conduct of the employee. It is immaterial that the employee intended by such act to secure a benefit for the employer. This view is supported by the declaration of the Court in Kelly v. Shoe Co., supra,, as follows: “Liability does not flow from the employee’s intent to benefit or serve the master, but it does flow, from the acts of the servant or employee in attempting to do what he was employed to do, that is, the acts complained of must have been done in the line of his duty, and within the scope of his employment.” Viewing the evidence from the standpoint of plaintiff, her arrest and humiliation were wholly without warrant, and such conduct arouses a feeling of resentment and outrage. However, it was for this very reason that the wisdom of mankind has established courts of law for the purpose of giving to each citizen or litigant an abiding guarantee that his rights shall be determined, as far as humanly possible, in the cold neutrality of even and exact justice. The Court is of the opinion that the judgment of nonsuit was properly entered. Affirmed. Olaeksoít, J., dissents.