Knowles v. Bullene, Moore, Emory & Co.

Gill, J. This is an action for an illegal arrest and false imprisonment alleged to have been committed against the plaintiff by defendant’s employees -in charge of one floor of their large department store at Kansas City. Plaintiff’s evidence was to the effect that in the afternoon of April 29, 1892, she visited defendants’ store, and while there, waiting to meet a lady friend, she was arrested by the floorwalker, taken against her will into the superintendent’s office, and there detained on the charge of stealing a piece of lace; that she was forced to take off her coat and turn the pockets wrong side out; that no such article was discovered, but that the lace was then found on the counter from which they falsely accused her of'taking it. Among other witnesses, the defendants introduced a young lady clerk who attended the lace counter, and who testified that she saw the plaintiff take the piece of lace from the stock and conceal it in her pocket; that the witness went at once to the floorwalker, a short distance away, and reported the theft and that said floorwalker at once took the plaintiff to the superintendent’s office, where after an investigation and search the plaintiff was allowed to go. The jury found as a fact that plaintiff did not take the lace, that she was falsely accused, that she was arrested and detained against her will, and awarded her damages in' the sum of $500, and from a judgment in accordance therewith defendants appealed. I. The main question raised on this appeal is— adnfitting the plaintiff to have been wrongfully used and to have been falsely charged, illegally detained and searched — whether or not defendants are responsible for the damages, it being conceded that they were not present and did not specifically order the arrest, and more than this that the employees were under instruc [347] tions not to arrest except they saw the offense committed. S?nnof masted !ri°ei!: powerto In our opinion the defendants are liable, notwithstanding their absence at the time and even conceding it to be true that the employees were told to arrest and detain persons charged with theft unless such agents themselves witnessed the act. We say this, too, in full recognition of the rule that the master is not responsible for the wrongful acts of the servant unless such acts are done in the service of the master and within the scope of the servant’s employment. It seems to us too plain for argument, that this arrest and detention was clearly within the scope of the employment of the defendants’ employees who arrested and' detained Mrs. Knowles. This floorwalker, superintendent, as well as the lady clerk, were intrusted with the custody and care of the defendant’s goods; and it was their duty, while so intrusted, to protect them from theft or spoliation. These servants were, within their respective spheres, the agents and representatives of the defendants — empowered, as the nature, of their employment implied, to do everything that was reasonably necessary to protect the property in their keeping, just as the principals could if present. To that end the clerk, floorwalker, and-superintendent were authorized to arrest and detain persons charged with theft— not for the purpose of criminal punishment but to recover the master’s goods. This authority was necessarily implied from the nature of the employment and was within the line of the master’s service. It may be that such clerks or employees will at times act indiscreetly or with bad judgment, will carelessly charge theft and arrest persons not guilty, yet who shall suffer for this indiscretion or misjudgment? Surely not the inoffensive customer, but rather the principal who [348] placed the agent there as his representative. This is the law as declared in Wood on Master and Servant, section 288: “When a person puts another in his place to do certain acts in his absence, he necessarily leaves him to determine for himself, according to his judgment and discretion, according to circumstances and exigencies that may arise, when and how the act is to be done, and trusts him for its proper execution; consequently he is answerable for the wrongful execution of the act either in the manner or occasion of doing it, provided it is done bona fide in the prosecution of his business, and within the scope of the servant’s express or implied authority, and not from mere caprice or wantonness, and wholly outside the duties imposed upon him by the master.” As said by Mr. Justice Blackbukn in the Poulton case, 2 Q. B. 534: “There can be no question that where a railway company or any other body (for it does not matter whether it is a railway company or not) have upon the spot a person acting as their agent, that is evidence to go to the jury that that person has authority from them to do all those things on their behalf which are right and proper in the exigencies of their business — all such things as somebody must make up his mind, on behalf of the company, whether they shall be done or not; and the fact that the company are absent, and the person is there to manage their affairs, is prima facie evidence that he was clothed with authority to do all that was right and proper; and if he happens to make a mistake, or commits an excess, while acting within the scope of his authority, his employers are responsible for it.” These principles are applicable to the case at bar. These servants or agents of the defendants were put in charge of goods held for sale; their primary duty of course was to make sales, but they were likewise relied [349] on to protect the goods from pilfering, and, to do this, were authorized, as the principals themselves might have done if present, to arrest and search parties for the purpose of recovering stolen goods. If, however, in the performance of this duty the defendants’ employees mistook the occasion for it and arrested and searched an innocent party, still the employers are responsible. It would be wrong and contrary to legal principles to visit the mistakes of these agents upon third parties, where as here such agents were acting within the general scope of the business intrusted to them by the principals. Neither will this liability be shifted and defendants relieved, because, as testified by defendant Thayer, he cautioned his employees to make no arrests except in cases where they actually saw the theft committed. Innocent third parties can not be affected by these instructions which were disobeyed by the defendants’ servants. Carretzen v. Duenckel, 50 Mo. 104; Farber v. Railway, 32 Mo. App. 378; Jones v. Packet Co., 43 Mo. App. 398. In these and numerous other cases that might be cited, it is in effect held that the master will be liable where the act was 'done by the servant in the scope of his employment, and to accomplish the purpose of that employment,, although it was done contrary to the express orders of the master. “The test of a master’s responsibility for the act of his servant is, whether the act was done in the prosecution of the master’s business, not whether it was done in accordance with the instructions' of the master to the servant.” Cosgrove v. Ogden, 49 N. Y. 255; Rounds v. Railroad, 64 N. Y. 129; Mfg. Co. v. Boyce, 36 Kan. 350. [350] : ~ : : [349] It seems to be the position of defendants’ counsel, that as the defendants could not have lawfully arrested the plaintiff (she being innocent) then their [350] agents could have no such, authority. As the basis of this contention reliance is had on Mali v. Lord, 39 N. Y. 381, where in course of the opinion the court says: “It can not be presumed that a master by intrusting’ his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present. The master would not, if present, be justified in arresting, detaining and searching a person upon suspicion, however strong, of having stolen his goods and secreted them upon his person. The authority of the defendants to the superintendent could hot therefore be implied from his employment.” It must be conceded that the case just cited is authority for defendants’ contention. But it seems to us that the New York , court in the case referred to misapplied the principle stated in the foregoing quotation. When it is said that no authority will be implied in the agent to do an act in defense of the principal’s property, which act the principal himself could not lawfully do if present, it must be understood as having relation rather to the character of the act than as to what the principal might have lawfully done under the particular circumstances of the case. To illustrate: The master would have no authority, if present, to shoot and kill one detected in stealing his goods, and so under the rule, correctly applied, no such authority could be implied in the servant. But the master may lawfully arrest and detain the thief and thereby force him to give up the stolen goods, and authority therefor may be impliedly given to the servant or agent, standing in place of the principal. In a well considered case from Rhode Island, Mali v. Lord was thus criticised: “Neither does this principle forbid the court to imply the responsibility of the master for the wrongful or [351] excessive exercise of the servant’s discretion in a case where the act done would have been lawful if the supposed circumstances had been real. This limitation seems to have been ignored in Mali v. Lord, 39 N. Y. 381. * * * It is quite true that the master would have had no right to arrest and search an innocent person; but it is equally true that he would have had the right to detain a thief, and to recapture his property from him. The case, therefore, was one where the act, aside from any excessive force, might be lawful or unlawful according to whether the supposed circumstances were real or unreal. The servant was left in a situation where he was obliged to determine the fact, and where his „duty to his master depended upon his decision. The decision was his, as the substitute of the master, and the act was one intended by him to be for his master’s benefit, and which his duty required if the facts were as supposed; hence as to third persons, it was the master’s act. The criterion of the master’s liability can never be whether the act would have been lawful for the master to have done in the circumstances as they actually existed.” Staples v. Schmid, 26 Atl. Rep. 193. Other points mentioned in brief — relating to the court’s modification of instructions, and the argument of plaintiff’s counsel to the jury — we have considered! and find in none of them any substantial matter for; complaint. The case was fairly tried and submitted) to the jury on proper instructions. The judgment will therefore be affirmed. All concur.