Cameron v. Pacific Express Co.

48 Mo. App. 99 | Mo. Ct. App. | 1892

Ellison, J.

This case has been well presented by the counsel on both sides, and our conclusion is to uphold the action of the trial court in refusing defendant’s demurrer to the evidence and submitting to the jury the question, whether defendant was liable for this particular act of its agent ?

We may concede, in a general way, that the local agent for the defendant company, without express authority, had no power to represent, and would not represent, the company in arresting or procuring the arrest of one whom he has ground to believe has stolen the company’s property, though it was property under his charge. In doing such act the agent acts in response to his duty as a citizen to sée that public justice is done by punishing the offender. He, by such an act, does not in theory of law seek to punish the supposed thief because he has wronged the company, but because he has wronged the state. In Allen v. Railroad, 34 Victoria, 65, the plaintiff, in purchasing a ticket, got into a dispute with defendant’s ticket agent by refusing to accept two French coins which the agent gave him in change. He reached over the counter and attempted to get his hand into the till and take out a penny instead of the French coins. The agent seized him and had him arraigned on a charge of attempting to rob the till. The judgment was for the railway company, the court holding that there was no implied authority in an agent having custody of property to take steps for the punishment of the supposed offender. And that “the act of punishing the offender is not anything doné with reference to the property; it is done merely for the purpose of vindicating justice.” To the same effect are the cases of Carter v. Machine Co., 51 Md. 290; Mali v. Lord, 59 N. Y. 381.

So it was also very properly held in Gilliam v. Railroad, 70 Ala. 268, that a conductor, who stopped his train near plaintiff’s house, and who, pistol in hand, entered the house and forcibly took plaintiff’s son, placed him aboard the train and carried’ him to the next station, was not representing the company, unless he had express authority or the act was subsequently ratified. These cases, among others of. a kindred nature, are cited by defendant’s counsel, and we have no war to make on the principles they announce. But our opinion is that they fail to sustain the case made here against defendant.

This case shovs that Ellison was defendant’s local agent in charge of its office and property at Carthage; that it was his duty to receive and deliver packages for transportation, and to collect charges thereon. This much is plain ; but what may properly be regarded as within the legitimate scope of such duties is a question of mere difficulty. “While, on the one hand, it is .right to consider the agents and servants of corporations as clothed with liberal discretion in the exercise of the authority 'given them, and to hold the corporations liable for all acts done within the limits of that discretion, on the other hand it is but just and right that corporations and their innocent stockholders should not be made to suffer the consequences of the wrongful acts of such agents and servants acting beyond the limits of their authority. Carter v. Machine Co., supra.

I have not the least doubt, that when the agent found that plaintiff had taken the property from the defendant’s office without paying the charges it was his duty resulting from his implied authority, either to seek and obtain payment of the»charges, or to seek and regain possession of the package. If the agent had been in the office at the time it would unquestionably have been his duty as such agent, to have resisted plaintiff ’ s taking the package without payment, and, if necessary to a successful resistance, to have called an officer to his aid. But counsel makes a distinction between the authority to resist a taking of the property and authority to regain possession after it is taken.

While I will readily agree that, after the crime is committed, the agent has no implied authority to act for defendant in redressing the public wrongs, neither would he have such authority while the crime is being committed, for his agency has nought to do with the crime as a crime. It relates solely to the property, and whatever he should do in the way of preventing the crime would be an incident merely to protecting the property. And I, therefore, find myself unable to allow the distinction stated, as it may relate to the-property. If the agent, upon learning that the package had been taken, had found plaintiff in the act of leaving Carthage, w.ould it not have been his duty to defendant to have either replevied the property or sued out an attachment for the charges ? Should he hold his hands and make no effort to save his principal 1 I think that in such a case he has an implied authority to regain control of the property, and I believe this conclusion is supported by the foregoing authorities cited to us by the defendant. In Allen v. Railroad, supra, Justice Blackburn says : “While not expressing an opinion on the matter, that if the clerk had reason to believe that the money had been actually stolen, and he could get it back by taking the thief into custody, and he toot him into custody with a view of recovering the property taken away, it might be that that also might be within the authority of the person in charge of a till.” That judge further said that there was a marked distinction between 'an act done for the purpose .pi protecting property or recovering it back and an act done for the purpose of punishing an offender for an act already done. ■ So, in Carter v. Machine Co., supra, the court said that, “if property be intrusted to an agent or servant for sale or safe keeping, there is clearly an implied authority to do all such things as may be proper and necessary for the protection of that property ; and for all acts done within the scope of the employment and the limits of the implied authority, the master is liable however erroneous, mistaken or malicious such acts may be.”

I will not enter here upon an examination of the authorities collected by the plaintiff’s counsel, in support of the action of the trial court in submitting the extent of the authority of defendant’s agent to the jury as a question of fact; they will be found in his brief. But it must be remembered, in the consideration of this case, that the evidence shows beyond question that the object which the agent had in view in procuring the arrest of plaintiff was not to vindicate public justice but was a means he adopted to recover for defendant’s property or the charges thereon; as witness the following telegrams and letters sent by him to officers at Pierce City, Missouri:

. “Carthage,. 14.

“A. T. King:—

.“They knew they were defrauding a boy when they took C. O. D. package out of office, and I consider it stealing. If they refuse to settle, arrest them, and bring them back or I will send a man for them.

“A. B. Ellison.”

“Carthage, Missouri, 12-13-88.

“ To Gity Marshal Pierce Gity, Mo.:—

“Arrest Bell & Cameron. Warrant will be sent this evening. Will send man down this evening, tut if they will square up, do it on the quiet, and let me know. A. B. Ellison.”

“Carthage, Mo., December 15, 1888.

“A. J. Ghappel, Pierce Gity, Mo.:—

“'Costs so far in Bell & Cameron case, $5.15, with $7.75 added makes total $12.90; add to this your charges for your work, and if they will pay the amount it will not be necessary to bring them down. Answer what they say.

“A. B. Ellison.”

■ “ Pacific Express Company, í

“A. B. Ellison, Agent. I

“ Carthage, Mo., December 15, 1888. )

“ To Mr. King, Constable, Pierce City:—

“Dear Sir:' — Bell & Cameron, lightning-rod men, put up at Decatur House, owe me $7.75 for a C. O. D. package which they picked up and ivent out of this office with last week, without paying for; circumstances are such that it can be made a criminal act, which it may be necessary to do to get my money. I wish you to see the parties before they leave town and ask them if they have remitted me, and if they have not proceed against them in my name as agent, and collect the bill, adding your expenses to the amount which I guarantee. If you wish to communicate with me go to the telegraph office, and have the operator call me up, as I am in the office here. Please let me know to-morrow what you do.

“Yours,

“A. B. Ellison,

“Agent.”

Plaintiff, having shown that defendant’s agent was acting within the scope of his implied authority in attempting to collect the charges due, or to recover the property, the defendant is responsible for his acts which are directed to that end, though they may be ineffectual or mistaken efforts, or though they be wilful and malicious.

The judgment will, therefore, be affirmed.

All concur.