9 N.Y.S. 922 | N.Y. Sup. Ct. | 1888
The evidence in this case does not seem to materially differ from that which was presented by the record upon the last trial of this-ease, upon the appeal from the judgment, in which this court held that there was sufficient evidence upon which the jury could find that the floor-walker, in the arrest and searching of the plaintiff, acted within the scope of his authority; and it would not be necessary upon this appeal to do more than to refer to the opinion previously announced, in order to sustain the judgment, were it not for the apparent failure to comprehend the evidence, which seems to be indulged in by the counsel for appellant. In discussing the previous opinion of the general term, it is insisted that it does not apply, because the record on the present appeal discloses absolutely nothing in the nature of instructions that could possibly justify any employe of the defendants in dragging into their store a woman who had been arrested a block away, and forcibly taking her to a private room, and subjecting her to a search. We have searched the record in vain to find any evidence which in the slightest degree justifies the foregoing statement. The whole argument is based upon the assumption that the plaintiff was arrested by the policeman in the street, and dragged into defendants’ store, and that such arrest was in no way re-quested by defendants’ agents. The evidence in the ease, however, discloses that the plaintiff was not arrested in the street, and that no force whatever was applied to her, either in respect to her movements or in respect to her person, except while she was in or on defendants’ premises. It is true that
There is another view to be taken of this case, which seems to be in consonance with the present line of decisions in regard to the principal being liable for the acts of his subordinates. It was long held by the court that a common carrier was not responsible for a willful assault by one of its employes upon a passenger. This rule, however, has been abrogated upon the theory that the common carrier invites the passenger to subject himself to the protection and care of the employe of the corporation, and under these circumstances the common carriers should be responsible for all the acts of the subordinates towards the passenger while under his custody and control. In like manner, the store-keeper invites the public to enter the premises, and to subject themselves to the custody and control of his subordinates, and by parity of reasoning he should be held responsible for the brutalities of such subordinates, even where they are not committed within the strict line of his employment. There seems to be no distinction in principle between the cases. The judgment should be affirmed, with costs. All concur.