4 Cal. App. 2d 468 | Cal. Ct. App. | 1935
Plaintiff appeals from judgment for defendants after order granting motion for nonsuit.
The complaint was entitled “complaint for damages— false arrest”, and contained three counts variously stating the incident upon which the action was predicated. It was in fact an action for malicious prosecution. (See 12 Cal. Jur. 429.) Service of summons and complaint was made on corporate defendants and they appeared and answered. The record indicates no service on nor appearance for any individual defendants.
Defendant corporations operate a chain of grocery stores, each managed by a representative in charge. Plaintiff entered store 18 in Monrovia, accompanied by her seven year old child, on February 5, 1931. She had traded there over a dozen times previously and was acquainted with one Seaman (named as defendant herein but not appearing), who wore a smock and a badge or button which said “Manager and Cashier” and who would check her groceries at the counter where the cash register was located and accept the money therefor. On the day in question she entered, and while making a purchase the following conversation and events transpired between Seaman and plaintiff, according to the latter’s testimony: “He asked me if my name wasn’t Anna Fields. I said, ‘No, it isn’t’. I said, ‘My name is Naomi Pierre.’ He said, ‘Oh, I know who you are, because I have been looking for you lots of times.’ I said, ‘Looking for me for what?’ He said, ‘Because you owe us $16.50.’ I said, ‘What do I owe you $16’50 for?’ He said, ‘For a
Plaintiff was arrested upon Seaman’s complaint and was kept in jail forty-three days, and upon trial in superior court she was found not guilty. She testified that she was
It is not questioned that the evidence should be construed in the light most favorable to plaintiff, nor. does it seem to have been contended that Seaman was not actually manager of defendants’ store, or that the events testified to by plaintiff did not transpire. Respondents cited Mackie v. Ambassador H. & I. Corp., 123 Cal. App. 215 [11 Pac. (2d) 3], as supporting the court’s ruling. The distinction is there made that where an employee acts “for the purpose of protecting the property [of the employer] by preventing a felony or of recovering it back”, the employer is liable for such acts of the employee under the doctrine of respondeat superior; whereas if it is “an act done for the purpose of punishing the offender for that which has already been done”, it is outside the scope of his employment and the employer is not liable.
In the instant case it was a question of fact to be submitted to the jury as to whether Seaman was acting for his employer in attempting to collect for the latter money to reimburse it for a check which had been cashed during the course of its business, and was using criminal process- to accomplish this result. The evidence presented by plaintiff, which must be construed in the light most favorable to her case in considering the court’s ruling, is such that we cannot say as a matter of law that Seaman was acting outside the course and scope of his employment. That being the ground on which the motion for nonsuit was granted, and there appearing to be no other ground which, although not stated, would support such a motion, we conclude that the trial court erred in its ruling and that appellant is entitled to a new trial.
Judgment and order of nonsuit reversed.
Stephens, P. J., and Grail, J., concurred.