96 Vt. 47 | Vt. | 1922
This is an action to recover damages occasioned by the fraud of defendant’s servant. Judgment was rendered for plaintiff on facts found by the court and the case comes here on defendant’s exceptions. The exceptions briefed are to certain of the findings, to the failure of the court to find as requested, and to the judgment.
The defendant is a life insurance company. It appears from findings not excepted to, that, at the time the acts complained of were committed, one "William J. Power was in the
The following findings were severally excepted to on the ground that they were not supported by the evidence:
1. “The plaintiff believed, and from the way in which the defendant permitted Power to hold himself out as its representative, had reason to believe, that statements made by Power as to his employment and what he had to do to obtain employment were the same as though made by the defendant. He also took the receipt believing that his money was being taken in behalf of the defendant in accordance with its requirements. ’ ’
2. “The plaintiff would not have intrusted his money to Power if he had not believed that in doing so he was intrusting it to the defendant. ’ ’
3. “In employing the plaintiff and taking his money instead of a bond, Power was acting in part to further the business of the defendant by securing a subordinate to solicit insurance and collect premiums for it whose cash deposit could be held to make up any shortage which might result from such subordinate’s failure to account for premiums collected, and in part to serve a purpose of his own which was to get the possession and control of the plaintiff’s money to enable him to convert it to his own use if he saw fit to' do so. ’ ’
It is not our province to weigh the evidence, in consid- . ering these exceptions. The findings must stand if supported by substantial evidence. Gilbo & Swartz v. Merrill’s Est., 92 Vt. 380, 104 Atl. 10, L. R. A. 1918 F, 387.
We think there is evidence to support the first two findings. As to the third finding, the evidence tends to show that in hiring plaintiff to solicit insurance and collect premiums, Power was acting within the scope of his employment and in furtherance of defendant’s business. Indeed, defendant practically admits this in its brief. But there is no evidence to support that part of the finding that Power was so acting in taking plaintiff’s money instead of the required bond. That the cash deposited “could be held to make up any shortage which might result from such
The defendant requested the court to find: “That .Power, in requiring and accepting cash from the plaintiff was not carrying out either the express or implied directions of the defendant, ’ ’ and excepted to its failure to do so. The court found that in using the contract Power used, and in taking plaintiff’s money, Power acted without the authority or knowledge of defendant. This covers all defendant was entitled to under this request. Moreover, it is not a question of whether Power was carrying out the directions of defendant, express or implied, but whether he was acting within the scope of his employment, actual or apparent, and in furtherance of defendant’s business.
This brings us to consider whether the findings, excluding from consideration such part of the third finding excepted to as is not supported by evidence, are sufficient to support the judgment.
The general rule, broadly stated, is that a principal is civilly liable to third persons for torts committed by his agent when acting in the actual or apparent scope of his employment, even though in committing such tort the agent exceeds .his authority or disobeys the express instructions of the principal. Story’s Agency, §§ 452, 453; 31 Cyc. 1582; 2 C. J. 848, and cases referred to in Story’s Agency there collected. This rule applies to acts of fraud and deceit as well as to conversion, assault and battery, and trespass. See cases cited above. While in most eases where the principal has been' held liable for the fraud of his agent the principal was benefited by such fraud, it by no means follows that the principal is not liable when the fraud is not committed for his benefit. Lloyd v. Grace, Smith & Co., L. R. (1912) App. Cas. 716, cited in Mick v. Royal Exch. Assur., 87 N. J. Law 607, 91 Atl. 102, 54 L. R. A. (N. S.) 1074. See also, Wilmerding et al. v. Postal Tel. Cable Co., 118 App. Div. 685, 103 N. Y. S. 594, affirmed 192 N. Y. 580, 85 N. E. 1118; Birkett v. Postal Tel. Cable Co, 107 App. Div. 115, 94 N. Y. S. 918, affirmed 186 N. Y. 591, 79 N. E. 1101; Bank of California v. W. U. Tel. Co., 52 Cal. 280; McCord
The test applied by this Court in Ploof v. Putnam, 83 Vt. 252, 75 Atl. 277, 26 L. R. A. (N. S.) 251, 138 A. S. R. 1085, is in effect this: The principal is liable for the acts of his agent if committed in the scope of his employment and in furtherance of the principal’s business. In other words, the liability of the principal does not depend upon the character of the act itself or whether it was done during the period of employment, but, rather on the question of whether it was done to carry out his directions, express or implied, or to effect some purpose of the agent alone. If the former, the principal is liable; if the latter, he is not liable.
The defendant contends that under this rule it is entitled to a judgment in its favor, because, in committing the fraud complained of, Power was not acting in furtherance of its business, but rather to effect a purpose of his own. This argument proceeds on the ground that the means used to accomplish the act, and not the act itself, is determinative. It fails to distinguish between the fraud, and the business in the transaction of which the fraud was committed, between the means used and the result obtained thereby.
It being virtually admitted by defendant that Power was acting within the scope of his authority, and in furtherance of its business, in employing plaintiff, can it escape liability for the fraudulent means used to effect such employment on the ground that Power alone was benefited by the use of those means ? This question must be answered in the negative. "When the transaction, in the consummation of which the fraud is perpetrated, is in furtherance of the principal’s business, to carry out some direction of his, express or implied, he is answerable for damages resulting from such fraud, although the agent alone is benefited thereby. It is only when the business transacted, or the act done, is itself to effect a purpose of the agent that the principal is not liable. Such is the effect of the rule laid down in the Ploof ease. In the ease in hand, while the means used to effect plaintiff’s employment were fraudulent, and benefited Power alone, the employment of plaintiff was in furtherance of defendant’s business and it had the benefit of plaintiff ’s services to the same extent that it would, had those services been secured in the manner authorized by defendant.
It may be admitted that, in the circumstances, the conclusion reached works a hardship to defendant, but a different conclusion would be to cast the loss occasioned by the fraud of defendant’s agent on the plaintiff, and it is more reasonable when one of two innocent persons must suffer from the wrongful act of a third person that the principal who has placed the agent in a position of trust and confidence should suffer, than a stranger.
Judgment affirmed.