141 Ill. App. 140 | Ill. App. Ct. | 1908
delivered the opinion of the court.
It is urged as a ground of reversal of the judgment that appellant did not bear such relationship to Cochrane, the detective, as makes it responsible for any of his acts, under the doctrine of respondeat superior.
The only direct testimony in the case as to the relationship of Cochrane to appellant and his authority from appellant is that of Cochrane. His testimony shows that he was employed and paid by the McGuire & White Detective Agency, and not by appellant, and that his duties were “to do general detective work.” He received his instructions as to his duties in the store of appellant from McGuire of the detective agency, to whom he reported. He never received any salary or wages from appellant or any of its officers, nor did he at any time receive any directions or instructions from appellant.
Neither party to this action offered any evidence on the trial of the contract between appellant and the McGuire &' White Detective Agency. The court is left to the inferences which may properly be drawn from the testimony of Cochrane and the facts in evidence to determine whether Cochrane was subject to appellant’s orders and control, and was liable to be discharged by it for disobedience of orders or misconduct. These are the real tests, according to the authorities, by which to determine whether Cochrane was acting as the servant of appellant. Wood on Master and Servant, secs. 281, 317; Wadsworth Howland Co. v. Foster, 50 Ill. App. 513, affirmed in 168 Ill. 514.
In Pioneer Construction Co. v. Hansen, 176 Ill. 100, it is said, at page 108: “He is the master who has the choice, control and direction of the servants-. The master remains liable to strangers for the negligence of his servants, unless he abandons their control to the hirer. Control of servants does not exist unless the hirer has the right to discharge them and employ others in their places. The doctrine of respondeat superior is applicable where the person sought to be charged has the right to control the action of the person committing the injury. It follows that the right to control the negligent servant is the test by which it is to be determined whether the relation of master and servant exists; and, inasmuch as the right to control involves the power to discharge, the relation of master and servant will not exist unless the power to discharge exists. (Shearman & Redfield on Negligence, p. 892, sec. 12; Erie v. Caulkins, 85 Pa. St. 247.) ” See also Condon v. Schoenfield, 214 Ill. 226.
< e np}le responsibility of a master for the tortious acts of his servants arises, grows out of, is measured by and begins and ends with his control over them. (McGuire v. Grant, 25 N. J. L. 356.) ” Crudup v. Schreiner, 98 Ill. App. 337, 340. As said in Penny v. N. Y. Cent. R. R. Co., 53 N. Y. Supp. 1043, 1045: “The negligent or wilful misconduct of the servant must not only be shown, but equally so that the act was within the scope of employment, before liability of the master is established.”
Applying these tests to the proof in this case, we think liability is not established. We cannot infer from the testimony of Cochrane that he was employed by appellant or that he was controlled and directed by it. We find no ground for inference in the evidence that the McGuire & White Agency had abandoned the control of Cochrane to appellant, or that appellant had any power to discharge him. We are compelled to hold, therefore, that the evidence fails to establish the relation of master and servant between appellant and Cochrane, and that the former is not liable for the latter’s act.
But if Cochrane was in some sense the servant of appellant so that the doctrine of respondeat superior is applicable, we find no basis in the evidence for the inference that his acts, as testified to by appellee, were within the scope of his employment. What Cochrane did is not evidence that he was authorized to do it by appellant. His testimony to the effect that he was directed “to do general detective work” does not prove that he was authorized to assault appellee in the manner and with the force described by her. Doing general detective work does not impart authority to arrest persons charged or suspected of committing criminal acts, or to assault them. Penny v. N. Y. Cent. R. R. Co., supra. “The doctrine of respondeat superior applies only to acts performed by an agent within the scope of his employment.” Pinkerton v. Gilbert, 22 Ill. App. 568.
Appellant’s contention on the evidence in the case is that the verdict is supported only by the testimony of the plaintiff, and that she is contradicted by several witnesses in essential particulars; and there being no elements of probability to turn the scale in favor of appellee, the verdict is against the weight of the evidence, and should be set aside.
It appears from the evidence that Cochrane and Clausen, the latter being at that time in the employ of appellant as a sales clerk, but at the time of the trial was in no way connected with appellant, each acting independently of the other, observed the movements of appellee at the lace counter. They saw her take a piece of lace off the counter and conceal it under her cape and walk away, and that they followed her to the rest room on the second floor. When she came out of the rest room they followed her to the street. When appellee was about midway between State and Dearborn streets, on the north side of Washington street, Cochrane accosted her. At this point there is a radical conflict in the evidence as to what occurred. Appellee testified that Cochrane grabbed her on the shoulder in such a way as to inflict serious injury thereto, and demanded that she go with him to appellant’s store; that he pounded her on the breast with his fingers, in the presence of the policeman; that she returned with a policeman and Cochrane to appellant’s store and was there searched and then permitted to go.
We are of opinion, however, from a consideration of the evidence, that appellee was not assaulted on the street, and that she was not arrested at any time, as testified by her; that she returned to appellant ’s store willingly, either at her own suggestion or at the suggestion of the policeman who at her request agreed to accompany her, and that upon this arrangement between her and the policeman, appellee went back to the store for the purpose' of being searched, in order to clear herself of any suspicion that she had the lace, and that the search that took place at the store was made pursuant to such agreement.
The testimony of appellee is in some respects improbable and unreasonable. As given on the trial before us it differs in essential particulars from her testimony on a former trial, and it is contradicted in essential particulars by the other witnesses, who appear to be disinterested, and who give more reasonable accounts of what actually transpired. We think the verdict and judgment should be reversed, as against the decisive weight of the evidence.
The judgment is reversed, with a finding of fact.
Reversed, with finding of fact.
Mr. Presiding Justice Baker dissenting.