81 N.Y.S. 109 | N.Y. App. Div. | 1903
The plaintiff has recovered a judgment against the defendant for an assault committed upon her by Shepard, one of defendant’s employees. Defendant had sold plaintiff some furniture under the installment plan, and there was an unpaid installment. Shepard came to the house. There was a direct conflict of evidence as to what occurred, but the jury by their verdict have apparently found the plaintiff’s account to be true. She testified: “ On July 12th, 1900, he came to my house, knocked at the door and asked for Mrs. McGrath, and I told him I was the party ; he said, ‘ Well, I represent Mr. Michaels, what are you going to do about that furniture again ? ’ I said I expected the collector to come on Tuesday, and
Shepard testified: “ Q. When you went down to collect on this date were yon authorized to do anything else ? A. Ho, sir. Q. Your other duties at that time were what ? A. Investigator, tracer and collector. Q. Were you authorized at any time to take the goods ? A. Hot forcibly — no, sir-—not by anybody, no, sir. Q. Only by replevin ? A. If they wished to give them up or by replevin.” - The court charged the jury: “ The theory of the law is that the defendant would be responsible for the tortuous
There is no doubt of the rule that a master may be held responsible for the acts of his servant within the general scope of his employment while engaged in the master’s business, even though the servant’s act be negligent, wanton or willful. (Grimes v. Young, 51 App. Div. 239; Rounds v. Del., Lack. & West. R. R. Co., 64 N. Y. 129 ; Mott v. Consumers’ Ice Co., 73 id. 543.) But this does not cover the point involved in the use of the word “ apparent.” I have found no decision which grafts any such doctrine upon the general rule above stated. In a case of this nature, it is actual authority, not apparent authority, which governs. The jury may have inferred that the acts of Shepard were evidence that apparently he had authority to remove the goods without the consent of the plaintiff, and that the assault was committed in the exercise of such authority. But the evidence of the limitation of his employment to the collection of the installment or to a removal of the goods only with the consent of the plaintiff is clear, explicit and uncontradicted.
The defendant is not responsible for a willful act of Shepard not within the scope of his employment, and the charge was error which requires a reversal of the judgment.
Bartlett, Jerks and Hooker, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
Sic.