Kiley v. Dilworth

Opinion By Henderson J., The defendant could only be made hable for the unlawful act of its employee when such act was expressly authorized or was ratified by the defendant or was done by the authority implied in the duties and powers of the employment. The general rule is that the employer is responsible for all acts done by the employee in accordance with the express direction of the employer and also for all acts done in the management of the employer’s business within the scope of the employment, but when the act was not expressly authorized or was outside of the implied authority the latter is alone responsible if the thing done be unlawful. Authority has been implied in numerous cases, but these all arose out of efforts of the servant to protect or recover property of the employer or to protect the employer’s servants or business. Krulevitz v. Eastern R. R. Co., 140 Mass. 573; Staples v. Schmid, 18 R. I. 224; Smith v. Munch, 65 Minn. 256; Eichengreen v. R. R. Co., 96 Tenn. 229; Lynch v. R. R. Co., 90 N. Y. 77; Smith v. Webster, 23 Mich. 297, are cases of the class referred to, but none of these went so far as to hold that an employer was liable for the act of a servant in causing an arrest not involving the loss or recovery of property or the protection of the employees or property of the master. In Allen v. Ry. Co., L. R. 6 Q. B. 65, a clerk caused the arrest of a person who had apparently attempted to rob a cash drawer. The attempt was not successful and had ceased at the time of the arrest. It was held that such an arrest was not within the scope of the clerk’s employment; that its only object could be the punishment of the offender — not the protection of the property, and that the company by which the clerk was employed was not liable for the unauthorized [333] act. A rule somewhat more limited was adopted in Edwards v. Ry. Co., L. R. 5 C. P. 445, to the effect that when a servant not specially appointed to protect property arrests a person whom he supposes to have stolen his master’s goods the servant should be presumed to have acted in pursuance of his duty as a good citizen and not within the scope of his employment as a servant. Carter v. Howe Machine Co., 51 Md. 290; Mulligan v. R. R. Co., 129 N. Y. 506, and Cen. R. R. Co. v. Brewer, 78 Md. 394, are in accord with the principle stated. In Markley v. Snow, 207 Pa. 447, the authorities are reviewed by the present Chief Justice and the principle stated that an employer may be held liable for the act of his servant in instituting a malicious prosecution but that 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. If 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 where the arrest was to recover the property, or when the crime was at the time being perpetrated, authority may be implied, but where the act is done for the punishment of the supposed criminal or the vindication of the law it is the act of the servant and not of the employer. It is true that the prosecution out of which that case arose was commenced about three months after the alleged crime, but we do not understand that this was a controlling consideration in the determination of the case. The decision was that the employment of the servant was not of such a character as to create an implication of authority to institute criminal prosecutions for past offenses not connected with the protection of the property or the servants of the principal or the conduct of [334] its business. Canon v. Railway Co., 216 Pa. 408, is of like effect. Complaint for embezzlement and larceny was made by the general superintendent of the company against a conductor and the action was brought against the company. A nonsuit was granted by the court below on the ground that the prosecution of the company’s servant was not within the scope of the employment of the superintendent and that as the act was not authorized or ratified the action could not be maintained. This conclusion was sustained on appeal where it was held that it was not within the implied power of the superintendent to prosecute in the name of the company. The doing of such an act was not in the exercise of the ordinary duties of an agent intrusted with the custody of the company’s money or goods, and the corporation could only be held liable for such an act when precedent express authority was shown or that there had been a ratification of the act of the superintendent. The principle announced in these cases we think justified the learned trial judge in entering the judgment appealed from. A careful examination of the evidence does not disclose any facts from which it should be inferred that either Walsh or Collins was acting under the implied authority of his employment in causing the arrest of the plaintiff. The defendant had lost no property nor was it in danger of such a loss. The order presented to Goldsmit Brothers neither caused a loss to that firm nor to the defendant. The attempted fraud was promptly detected by Goldsmit Brothers, and whatever offense, was committed by the maker of the order was a past transaction when Walsh and Collins came onto the scene. There had been a discussion to some extent between some of the defendant’s employees and representatives of other wholesale tobacco dealers with reference to forged orders for tobacco, and there was apparently an understanding that they would be on the lookout for any persons attempting to use such orders, but there is nothing in the testimony which [335] shows that the defendant company participated in such discussion or that there was any understanding amounting to an agreement to which it was a party to make arrests or institute prosecutions. We are of the opinion that the case does not disclose such a state of facts as would justify an inference of authority from the defendant to make the arrest of which the plaintiff complains. The judgment is affirmed.