Long v. Eagle 5, 10 & 25c Store Co.
198 S.E. 573
N.C.
1938
Check Treatment
Seawell, J.

The defendant relies entirely on the motion for nonsuit at the conclusion of the plaintiff’s evidence. It insists that this motion should have been allowed upon the ground that there was no evidence from which á valid inference could be drawn that (1) Senter, the assistant manager, caused the arrest to be made, and (2) that he was acting within the scope of his duty and authority and about his master’s business in making the arrest.

*149 1. Tbe evidence, both direct and circumstantial, is sufficient for submission to the jury on this point.

Senter, with timely precision, preceded the plaintiff to the exit, and when the latter came out of the door he found Senter standing on one side of the door, a policeman on the other side, and an officer in a police car, in readiness for his reception. The officers, without parley, proceeded to make the arrest. Information had obviously been given by the only person shown to have entertained the notion that plaintiff was a fit subject for police attention — Senter. Senter got into the police car and was personally present and actively participating in the search, identifying the screw driver, when found on plaintiff’s person, as being the object of the search.

When asked by plaintiff if he had had him arrested for stealing a screw driver, Senter replied that he had seen him put it in his pocket without paying for it.

Defendant’s counsel give more serious attention to the second proposition.

2. Senter was assistant manager of the Store Company. While such a description might not indicate the exact scope of his duties or authority, still, taken in its ordinary meaning, and in connection with the evidence as to the duties which Senter was openly performing in the store the day of the arrest, it was sufficient to raise an inference that he was at least clothed with authority to protect his employer’s goods against injury and theft.

In Kelly v. Shoe Co., 190 N. C., 409, 130 S. E., 32, Justice Varser said for the Court: “The term 'manager,’ applied to an officer or representative of a corporation, implies the idea that the management of the affairs of the company has been committed to him with respect to the property and business under his charge. Consequently, his acts in and about the corporation’s business, so committed to him, is within the scope of his authority. 5 Words and Phrases, 4319; Sullivan v. Evans-Morris-Whitney Co., 54 Utah, 293. The designation 'manager’ implies general power, and permits a reasonable inference that he was invested with the general conduct and control of the defendants’ business centered in and about their Wilmington store, and his acts are, when committed in the line of his duty and in the scope of his employment, those of the company.”

It is pointed out by the defendant, however, that even this does not warrant an inference that Senter had authority to proceed against this plaintiff in order to avenge any theft or supposed theft from the company, and to have the plaintiff punished therefor. The defendant contends that this was the sole purpose and effect of Senter’s conduct and that, therefore, under the rule laid down in Lamm v. Charles Stores, *150 201 N. C., 134, 159 S. E., 444, the defendant is absolved from any liability in connection with the conduct of its assistant manager.

In this case the defendant is not particularly aided by the fact that the arrest and search of plaintiff was made by officers of the law. In Dickerson v. Refining Co., 201 N. C., 90, 99, 159 S. E., 446, we find the pertinent observation: “When the servant is engaged in the work of the master, doing that which he is employed or directed to do, and an actionable wrong is done to another, either negligently or maliciously, the master is liable, not only for what the servant does, but also for the ways and means employed by him in performing the act in question. Ange v. Woodmen (173 N. C., 33, 91 S. E., 586) ; Reinhard on Agency, supra; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137;” etc. In so far as it affected the liability of the company, Senter’s action in calling in the policemen put the defendant in no more advantageous position than if he had called to his assistance any other persons of sufficient strength and willingness to detain the plaintiff and search his person.

In some instances, as in Lamm v. Charles Stores, supra (where a warrant was sworn out more than three months after the supposed offense was committed), the arrest could hardly be considered as a part of the res gestee attending the original transaction, since the time elapsed and the character of the proceeding taken might indicate that the conduct was merely in vindication of the law; and proof of a distinct and direct authorization or ratification of the act would be required, not to be inferred from the circumstances of the case, before liability is established on the theory of respondeat superior.

But in this case we do not have to go that far in order to attach liability to his employer for the conduct of Senter. The arrest of the plaintiff at the instance of defendant’s assistant manager, and a search of his person for an article just acquired and still in his possession, in the immediate presence and at the instance of Senter, must be regarded as one continuous transaction, insulated by neither time nor circumstance from a valid inference which the jury might draw that the conduct of the assistant manager was directed, mistakenly as it proved, to the immediate protection of his employer’s property against theft and its recovery from the thief, and that his action was well within the scope of his authority. Kelly v. Shoe Co., supra; Berry v. R. R., 155 N. C., 287, 71 S. E., 322; Brockwell v. Telegraph Co., 205 N. C., 474, 171 S. E., 784.

We are not unmindful of the suggestion of counsel that it was very improbable that Senter would have gone to all this trouble to recover a five-eent article. Perhaps five-eent articles comprised the bulk of defendant’s stock. At any rate, it might be considered even more improbable that the assistant manager, independently of his relation to the *151 defendant, and the immediate necessity to protect its property, should have caused the arrest of the plaintiff in mere vindication of justice, and with such marked dispatch, for stealing a five-cent screw driver. In fact, this case is grounded upon the unwisdom of the assistant manager, and these matters were for the jury. It has been held that where there is doubt as to the servant’s scope of authority, the trial judge is required to resolve the doubt in favor of the plaintiff and submit the evidence to the jury, upon the ground that the employer had placed the servant in position to do the wrongful act. Dickerson v. Refining Co., supra. If the evidence is competent to be submitted to the jury, the right of the jury to draw a reasonable inference from it cannot be questioned.

In some of the cases cited above, the authorities on the subject under discussion have been studiously and copiously collated and adequately discussed. We find no substantial conflict' between them and refrain from adding to the burden of citation.

In the trial of this case we find

No error.