Russell v. Palatine Insurance

63 So. 644 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

Appellant filed this suit against the Palatine Insurance Company, appellee, and W. B. Klein, the special agent of said company, for malicious prosecution. At the close of the evidence the court instructed the jury to find a verdict for each of the defendants. This appeal is from the judgment in favor of the Palatine Insurance Company; no appeal having been instituted from the judgment for Klein.

Many interesting questions are presented by the able and exhaustive briefs filed by counsel for both sides of this controversy, but we deem it only necessary to discuss the point which is necessarily determinative of this appeal.

Appellant was the local agent for the insurance company and fell behind in the payments of his accounts due to the company for premiums on policies issued by him, which premiums he had collected from the policy holders or he owed to the insurance company by his contract with it.

W. B. Klein was the special agent of the insurance company, and as such he was authorized to suspend, check up, and settle with the local agents of the company. The scope of his agency is assumed for the purpose of this appeal, for, as a matter of fact, it is not altogether clear from the record what authority Klein actually had to act for the insurance company. His authority is largely established by proof of his declarations and acts, but we will consider him as the authorized agent of appellee for the purposes mentioned.

“Prom the natural improbability that one should voluntarily, without authority, assume to act for another, settling his obligations for a considerable length of time, and from the fact that such conduct would naturally come to be known by the assumed principal, the fact of agency may be presumed.” Neibles v. Railroad Co., 37 Minn. 151, 33 N. W. 332.

Klein checked the books of appellant, and the amount due the company was ascertained and agreed upon. Various efforts were made, to collect the balance, and various expedients were suggested by appellant and by Klein whereby this end could be reached, none of which “panned out” anything. The effort to collect and the conferences between Klein and appellant seem to have ended some time, near the 1st of March, 1911.

The grand jury at the April term, 1911, indicted appellant for embezzlement of the company’s funds; this indictment having been returned solely on the evidence of Klein, who appeared before the grand jury voluntarily, never having been subpoenaed as a witness. The jury at the trial of this indictment acquitted appellant, and it is upon this prosecution this suit is based.

There is nothing in the record to suggest that the insurance company was advised of this indictment, or that they ratified the action of Klein in bringing about the prosecution; but it is earnestly insisted that Klein acted within the scope of his authority when he volunteered as a witness against appellant.

This-court in Fisher v. Westmoreland, 101 Miss. 180, 57 So. 563, cited with approval Daniel v. Railroad Co., 136 N. C. 517, 48 S. E. 816, 67 L. R. A. 455, 1 Ann. Cas. 718. In that case the supreme court of North Carolina held: •'‘The appointment of one as cashier at a railway station, with power to collect money, give receipts, sell tickets, take care of the money received, and forward it to the treasurer of the company, does not empower him to arrest persons whom he suspects of having stolen money which has come into his possession so as to render the railroad company liable in case he causes the arrest of an innocent person.” Judge Walker, speaking for the court, said: “The circumstances under which they pursued this man, without the warrant of the law, even to his bedchamber and at the silent hour of midnight, arousing him from his peaceful slumbers, invading the saneity and privacy of his room, which the law surrounded with its protection as much so as if it had been his home or his castle, subjecting him to such indignities as no self-respecting man could submit to, even under compulsion, without feeling that he had been humiliated if not degraded by them, marching him through the office of the hotel and down a public street where any and all might sée the infamy and disgrace which they had fastened upon him, all these things and more they did which made their offense against him, if the evidence be true, a very serious one, and to him they and a]l who participated in causing his arrest are responsible before the law and they must reckon with him if he sees fit to call them to account. But we must not allow any feeling of indignation at the grievous wrongs inflicted upon the plaintiff (which cannot be too severly condemned, if, as we must assume, he is an innocent man) to withdraw our attention from those principles of that same law by. which the defendant’s rights are guarded.”

It wall be seen from this graphic description that plaintiff in that case was most outrageously treated and gratuitously humiliated by the agent of the railroad company. The court then states the plaintiff’s contention and the court’s response thereto as follows: “The plaintiff’s sole contention is that what Atkinson did at Green-ville, and Meacham at Kinston, was within the line of their duty and the scope of their employment, and therefore they had implied authority from the defendant to do what they did, upon the theory, we suppose, that every authority carries with it, or includes in it, as an incident, all the powers which are necessary, proper, or usual as means to effectuate the purpose for which it was conferred, and that consequently when an agency is created for a specified purpose, or in order to transact particular business, the agent’s authority, by implication, embraces the appropriate means and power to accomplish the desired end. He has not only the authority which is expressly given but such as is necessarily implied from-the nature of the employment. Story, Agency (9 Ed.), par. 97. This is the general rule, and the doctrine of respond-eat superior is a familiar one. But in our opinion it has no application to the facts of this case. If we should hold that it is so broad in its scope as to include a case like this one, it would lead to most dangerous consequences. For us to say that an agent can by his acts subject his principal' to liability in damages to any one injured by his said acts, done when he was not about his master’s business, and had no express or implied authority to do them, but was merely seeking to avenge a supposed wrong already committed or to vindicate public justice, would be carrying the doctrine of respondeat superior far beyond its acknowledged limits. A servant intrusted with his master’s goods may do what is necessary to preserve and protect them, because his authority to do so is clearly implied by the nature of the service; but when the property has-been taken from his custody or stolen, and the crime has already been committed, it cannot be said that a criminal prosecution is necessary for its preservation or protection. This may lead to the punishment of the thief or the trespasser, but it certainly will not restore the property or tend in any degree to preserve or protect it. It is an act clearly within the scope of the agency and cannot possibly be brought within the limits of the implied authority of the agent. ’ ’

In the case of Markley v. Snow, 207 Pa. 447, 56 Atl. 999, 64 L. R. A. 685, also cited in Fisher v. Westmoreland, supra, it is held that: “Employees of a mining partnership, who are charged with the care and management of its property, do not act within the scope of their employment in causing, long after the commission of the crime, the arrest, for the purpose of vindicating the law, of .one who is suspected of having set fire to a building belonging to the partnership, so as to render the partnership liable for malicious prosecution in case the arrest proves to have been without justification.”

An express company is not liable for the wrongful acts of its agent at its office in a city, in charge of its business there, in causing the arrest of one for larceny from the office, unless it authorized or ratified the act. Winter v. Express Co,, 153 N. C. 507, 69 S. E. 497.

Mr. Klein was employed by the insurance company to collect its claim against appellant, and he was authorized to employ all appropriate means to accomplish this end; and, while the agent is employing appropriate means to carry out his master’s business, the master is responsible for his acts. Certainly it cannot be said that a criminal prosecution is a means appropriate to the collection of debts. In Dally v. Young, 3 Ill. App. 39, it is said: “Where an agent institutes a malicious prosecution of his own head, and without the instigation or directions of his principal, the latter will not be liable for the same, unless he adopts and continues the same with knowledge of all the circumstances.”

Should we hold that appellee was responsible for the acts of Klein, it would be to hold, when an authority to collect a debt is shown, the law will imply the authority to institute criminal proceedings against the debtor in / case the debtor fails or refuses to pay. We do not believe that this is sound in reason or in law.

Affirmed.