51 S.E. 1015 | N.C. | 1905
Plaintiff brought this action to recover damages for false imprisonment. He alleged that one McManus caused a warrant to be issued by a magistrate for his arrest upon the charge of an assault with a gun, and that he was taken into custody by the sheriff and (349) confined in jail for about a day. There was evidence tending to prove the false arrest and imprisonment, and the case turns upon the question whether McManus acted for and in behalf of the *286 defendant, as its agent, in suing out the warrant. The issues submitted, with the answers thereto, were as follows: "1. Was J. C. McManus the agent of the defendant company and in charge of the work? Ans. Yes. 2. Did J. C. McManus procure the plaintiff to be arrested, for the purpose of getting him out of the way, in order to put up the telephone and telegraph poles across the plaintiff's land while he (the plaintiff) was under arrest? Ans. Yes. 3. Was such arrest without probable cause, and for the purpose of enabling the defendant's agents and servants to put up the telephone and telegraph poles upon said land claimed by the plaintiff? Ans. Yes. 4. Did the defendant company, by its agents and servants, put up telephone and telegraph poles across the land claimed by the plaintiff, while the plaintiff was under arrest, and still continue to keep said poles and continue to use them? Ans. Yes. 5. What damage, if any, is the plaintiff entitled to recover? Ans. $900."
There was evidence tending to show that the American Telephone and Telegraph Company was extending its line into Cumberland County, and that McManus was in charge of a squad of hands who were putting up poles and stringing wires on them near the plaintiff's home. Plaintiff testified that "McManus was having the poles put up, the wire strung, and telling the hands where to go and what to do. There were thirty-five or forty hands, and McManus was in entire control." Another witness, John C. Ratley, testified: "I saw McManus in charge of a crowd of hands, pushing them on, hurrying them up. I stayed with him a while and then came back home. He had about fifty hands." There was also evidence tending to show that plaintiff had forbidden McManus from erecting poles on his land, and that the arrest (350) was made in order to put him out of the way until the work could be done, McManus having threatened beforehand to put plaintiff out of the way until the hands could do the work. The poles were put up and the wire strung while the plaintiff was under arrest, or in jail. McManus called at the home of the officer and told him he wanted the arrest made, and that it must be done that evening. He hired a team, and an officer went with him to the plaintiff's house and made the arrest. McManus then went to the place where the hands were working, and said that he wanted the wire put up and that he would pay double wages for the work done after night. They commenced work about half hour after sundown and continued into the night, and the poles were put up and the wire strung. When plaintiff refused to permit them to construct the line upon his land, and ordered them to leave, McManus replied, "I will put you out of the way, or I will have the poles up before sundown." When the case was called for trial *287
before the justice, McManus failed to appear, and the plaintiff was discharged. The justice found that the prosecution was frivolous and malicious and taxed McManus with the costs. Defendant introduced testimony tending to show that it had two departments engaged in the building of its line, the right of way, and the construction departments, and that Fred Linson was foreman of the construction department and McManus was assistant foreman and employed by Linson, the latter having been appointed by Campbell, the superintendent of construction; that Jackson assaulted McManus with his gun, and that the arrest had nothing to do with the work of the company, and was not authorized by the company or any of its agents; that Jackson signed a "voucher" in the regular form, giving defendant the right to build, operate and maintain its line on the land, stating that it was his wife's property, and afterwards claimed the land as his own and refused to carry out the agreement, and that the work was done by Linson's force in the belief that defendant had secured the right to use it, and without any reference to plaintiff's arrest; that none (351) of the agents or servants of defendant was authorized to arrest the plaintiff, and that McManus was not with the force when the arrest was made. These are substantially the facts which the testimony tended to establish on either side, and which are necessary to be stated for an understanding of the case. The defendant's counsel asked that certain instructions be given to the jury, which will be hereafter noticed. After a motion for a new trial, which was refused, judgment was entered upon the verdict. Defendant excepted and appealed.
The principal questions discussed in this Court related to the competency of the acts of McManus as proof of his agency for the defendant, and to the liability of the defendant for his conduct in unlawfully causing the plaintiff's arrest. The defendant's counsel contended that no authority to bind the defendant had been shown, and that his acts were not competent to show any such authority, but that it must be established, if at all, by evidence independent of his acts and declarations. It is common learning that acts and declarations of a third person are not evidence against a party unless such third person be his agent, and it is equally well settled that the agency must be first shown, otherwise than by such acts and declarations, before they are admissible. The court must be satisfied that the agency has been shown, at least prima facie, before anything that *288
the alleged agent has said or done, can be submitted to the jury as evidence. Williams v. Williamson,
This brings us to the consideration of the other question, as to the liability of the defendant for the act of McManus, in arresting the *289
plaintiff. Whoever commits a wrong is liable for it, and it is immaterial whether it be done by him in person or by another acting by his authority, express or implied. Qui facit per alium facit per se. Upon this maxim of the law is founded the doctrine that the principal is liable for the tort of his agent, and the master for the tort of his servant. If the wrongful act is done by express command of the master, or even if he has afterwards made it his own by adoption, there is no difficulty in applying the rule; but it is otherwise when the liability must proceed only from an implied authority. Where the servant does a wrong to a third person, the rule of respondeat superior applies, and the master must answer for the tort, if it was committed in the course and scope of the servant's employment, and in furtherance of the master's business. "A servant is acting in the course of his employment, when he is engaged in that which he was employed to do, and is at the time about his master's business. He is not acting in the course of his employment, if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interruption of the course of employment as to suspend the master's responsibility; but, if there is a total departure from the course of the master's business, the master is no longer answerable for the servant's conduct." Tiffany on Agency, p. 270. We see, therefore, that the master is liable, even if the act is willful and deliberate, provided it was committed in the course of the employment and for (354) the master's purposes, and not merely for the servant's private ends. Tiffany, supra, 273; Pierce v. R. R.,
Redditt v. Mfg. Co., supra; Willis v. R. R.,
We will now consider the defendant's prayers for instructions. The first as to the declarations of McManus was given. The second, third and fourth, to the effect that there was no evidence of his agency, or of his authority to do the particular act, were properly refused, as we have shown. The fifth prayer, that the acts of the agent, to bind the principal, must be within the scope of his authority, was not germane to the issues as framed, but it was substantially given by the court in charging upon the issues as submitted to the jury, or the defendant at least got the full benefit of the instruction requested, though not in the form it was asked to be given. The seventh prayer as to punitive damages, was properly refused. The court charged correctly when it permitted the jury to award punitive damages. If McManus, as the jury found, arrested the plaintiff, not because the latter had assaulted him, but to put him out of the way, and thereby prevent his resistance to an entry upon the land, it was a case where vindictive damages might well be allowed by the jury in addition to compensation for the wrong. The court in its charge made the question of probable cause turn upon whether the plaintiff had or had not assaulted McManus, and they having decided that there was no probable cause, it follows that they found there was no assault, and that the arrest was wholly unjustifiable, and a wanton, high-handed and oppressive act, for which punitive damages may be allowed. Remington v. Kirby,
We think his Honor submitted to the jury all the questions involved with the utmost fairness, and explained fully the principles of law applicable to the case. The charge was as favorable to the defendant as it was entitled to expect under the evidence. There was no error in refusing to submit the two issues tendered by the defendant. It had the full benefit of them, as they were embraced by those which were submitted, and this is all that is required. Warehouse Co. v. Ozment,
We do not approve of issues which, as in this case, embody evidentiary facts instead of the ultimate facts to be found by the jury, and which are therefore the only issuable facts. Grant v. Bell,
No error.
Cited: Sawyer v. R. R.,
(358)
