Veneruso v. Spear & Co.

Ingraham, P. J. : The defendant sent a two-horse delivery wagon, with a driver, helper and collector, to a house.in Brooklyn, to collect a bill owing to it for furniture, purchased by a former resident of the house. They arrived at the house and the helper and collector went in and demanded the payment of the amount due on the bill or the return of the furniture from the plaintiff who was then in possession of the house. The collector, after plaintiff stated that the person who had purchased the furniture had moved away and no longer lived there, claimed that a buffet, in the room wherein they then were, was the piece of furniture purchased from the defendant. According to plaintiff’s story, they attempted to take it, and when plaintiff resisted, assaulted her. For that assault this action is brought. There was evidence introduced by the plaintiff to show that the wagon, in which the men came to the house, belonged to and that the men were employed by the defendant. On the part of the defendant it was shown that the collector was dead; the helper was called and denied the assault; the manager was called and testified that the collector, helper and driver were in the defendant’s employ; that he gave instructions to the collector to request the customers to make payment of balance due on account; that if no payment is made he is to request [631] the return of the goods from the customer, and if the customer refuses to return the goods, he has orders to go out, leave the premises, and report that to the office, and that these instructions are given to all the men in the defendant’s employ. The court submitted to the jury whether these men were servants of the defendant, whether they were acting within the scope of their employment when they attempted to take this piece of furniture from the house, and whether, while so acting, they inflicted upon plaintiff the injuries of which she complains. The jury found a verdict for the plaintiff and the only question is whether there is evidence sufficient to warrant submitting the questions to the jury. The court, in its instructions to the jury, charged every request' by the defendant and there is no exception to the charge. I think this was clearly a question for the jury. The defendant sent to this house a delivery wagon and three men. They had instructions, if the money was not paid on demand, to demand the return of the articles sold, and if that demand was not complied with, to remove the furniture and return it to the defendant’s place of business. Certainly, in going to the house and in making demand for the return of the furniture, the bill not having been paid, the men were acting within the scope of their. employment, for that was just what they were directed to do. But they were further instructed, if the return of the furniture was refused, not to take it by force but to return to the office and report, but that instruction left it to the employees to determine when the demand was refused and when to take the furniture. The only witnesses by whom the defendant attempted to prove any limitation on the authority given to the employees of the defendant were the manager of defendant and the helper, who was present at the time of the occurrence. The defendant had sent a wagon and three men to the house, which certainly would not have been the usual course if a mere demand for the payment of the bill was to be made. Under certain conditions the collector and helper were authorized to remove the furniture and return it to the defendant’s place of business. As long as they had authority to go and take the article . sold in case the bill was not paid, it cannot be said that the use [632] of force to accomplish their purpose was not within the scope of their employment; but evidence of what instructions were given and what force was to be employed, came from witnesses in the employ of the defendant, and it was not for the court to say as matter of law that the collector and helper were acting without the scope of their employment. In Weinstein v. Singer Mfg. Co. (121 App. Div. 708) the facts were quite different. There the defendant proved a written contract with the two men who it was claimed committed the assault, and it was held that, under the express,contract, which was in writing, defendant’s men had no authority from the company to take the machine away from the plaintiff’s husband and had no authority to use force for that purpose, and there was nothing in the relation of either of these men to the defendant, nor the authority conferred upon them by -their contracts under which they were working for the defendant, which authorized them to take any act in recovering possession of this machine except as directed by the defendant. In this case the defendant was expressly authorized to remove the furniture, and evidently from the fact that they went in a delivery wagon to the house, the collector together with helper and driver went there expecting that it might be necessary to remove the articles sold. Assuming that the jury were bound to find upon this testimony that the collector at the same time had been instructed not to.make an assault, if he could not get the furniture without it, that does not .seem to me to be a Hmitation upon his authority to remove the furniture that would relieve the defendant from liability for the use of force, although using of force was a violation of the instructions to. its employees. The defendant was authorized to go to the house and collect the bill or. take' the furniture, and for the acts which its employees did in accomplishing that purpose which the defendant had in view, it seems to me, the defendant was responsible. If I am wrong, however, it seems to me it was at least for the jury to say from all the testimony whether .the acts of this collector, while he was in- the plaintiff’s house carrying on the business of his employer, were within the scope of his authority, or whether the testimony of the defendant as to the scope of his authority was such as to [633] relieve the defendant from liability for such acts. As the questions were submitted to the jury in an eminently fair charge to which no exception was taken, I see no reason to interfere with their verdict. I think, therefore, the judgment should be affirmed, with costs. Laughlin and Hotchkiss, JJ., concurred; Clarke and Scott, JJ., dissented.