95 N.Y.S. 270 | N.Y. App. Div. | 1905
Lead Opinion
In this case the plaintiff. alleges two causes of action. The first is based upon an alleged assault on the plaintiff by the defendants through one of their duly authorized agents on a public street, in the city of New York, where she was unlawfully forced and dragged and compelled to go to the store of the defendants, and where she was imprisoned and placed in close confinement and restrained of her liberty, and was treated with insult, brutality, contempt and indignity to her person by the duly authorized agent and servants of the defendants, who charged the plaintiff with being a thief, and called her vile names, for which the plaintiff asks damages for $20,000, and for a separate cause of action these acts are realleged, and that in consequence thereof she was greatly hurt, bruised and" wounded in body, and her nervous system greatly shocked and she became sick and sore, and so continues to the present time-; during all of which time the plaintiff suffered and still suffers much pain and anguish of mind, and was made very nervous, for which. she asks damage in the'sum of $5,000..
Upon the trial, after a jury had been impaneled, counsel for the defendants asked the court to direct the plaintiff to elect as to whether the action was for false imprisonment or malicious prosecution, whereupon counsel for the plaintiff stated, “ We elect false imprisonment.” Attention was then called to the second cause of action, when the court said, “ Then the second cause of action fails,” and counsel for the defendants said, “ I assume that the prayer for relief is $20,000. on the false imprisonment,” when counsel for the. plaintiff said, “ We will let it go at that.” Thereupon counsel for t.he .defendants moved to strike out certain allegations of the complaint, which motion was granted. A like motion was made as to certain other allegations of the complaint, which motion was denied, and the trial then proceeded.
From the evidence it appeared that the defendants conducted a large retail store in the city of New York; that one Harry M. Blades had been, prior to the time specified in the'evidence, designated as a special officer at the defendants’ store at their request, under
One Blades having been appointed under this provision as a special patrolman, possessed all the powers, and was required to discharge all the duties, of the police force applicable to regular patrolmen. He was subject to the orders of the chief of police, was required to obey the rules and regulations of the police department and to conform to its general discipline and to such special regulations as may be made. He was not under the control or subject to the orders of the
The plaintiff was called as a witness and testified that on the 19th day-of Mai’ch, 1900, she went to the defendants’ store to make some" purchases, arriving there twenty minutes before four o’clock ; that she went to several departments of the store, made some purchases, and at six o’clock, the usual time for closing, she left the store. The plaintiff was accompanied by her sister who went to a restaurant in the neighborhood of the defendants’ store for a Cup of milk, while the plaintiff remained in an adjoining doorway; that as she was standing in the doorway two men came to her and asked her some questions as to her residence, and then asked whether she had lost her pocket. book at Wanamaker’s; that she was asked about an umbrella that she carried, when one of the men said, “ So you have stolen this umbrella to-day in 'Wanamaker’s and I am a detective in Wanamaker’s and you have got to go along with me; ” that the man that spoke then took the plaintiff by the arm and dragged her through the street; that the plaintiff cried for her sister, when
By this time the plaintiff’s sister had come in when Blades said, “We will take you upstairs and see what else you have got,” and to that the old gentleman said, “ No, it is not necessary.” Blades said, “Never mind, we will take it anyhow,” when the plaintiff and her sister were taken up in an elevator to the fifth or sixth floor. She testified that while there she was searched, and when she remonstrated Blades said, “ I am a detective, I can do what I want, you are the biggest thief in this world,” and calling her other names. After she was examined she was accused of having stolen some small articles that were found on her, when Blades presented to her a typewritten paper which recited that she had stolen something from Wanatnaker’s that day, and that if she promised never to come back again he would allow her to go home. The plaintiff refused to sign this paper and Blades said, “You will have to go to the station house, we have got a patrol waiting for you and we will bring you to the station house.” The plaintiff expressed a willingness to go to the station house, but objected to the patrol wagon, requesting permission to telephone to her brother-in-law, which Blades refused to allow, but said that they would go to the station house. Subsequently, after the plaintiff had put on her coat to go to the station house, Blades called her in another room and told her that he was sorry that he had make a mistake, and asked her not to tell anybody about it. He then opened the door, called in her sister and conducted her to a street car and she went home. She testified that she had stolen nothing.
Blades testified that he had seen her secrete some small articles at Wanamaker’s, and believed that she had been guilty of larceny, and having thus seen her in the commission of this offense he followed her and arrested her. There was no evidence that either of the defendants or any of their employees had anything to do with this
At the end of the testimony counsel for the defendants moved to dismiss the complaint upon the ground that the arrest, if any, that was made by Officer Blades was made in the discharge of his duty as a public officer and not as an employee of the defendants ; that Blades had no authority from the defendants, express or implied, to arrest the plaintiff, and the defendants were not responsible, there being no evidence as to any employment of Blades by the defendants. This motion was denied, and the defendants excepted. The court then submitted the question to the jury, stating that the defendants’ contention was that the plaintiff’s arrest was not done under any direction of the defendants,. but was done upon the officer’s own volition, and that the officer had the right to make the arrest, since he was a duly appointed officer of the Metropolitan police force of Hew York; and stating to the jury that the question was “ whether the act of Blades, a special police officer, was done in the defendants’ service and pursuant to an employment to which his public employment was but incidental; ” that “ the plaintiff claims that the officer in question was a regular detective or stock watchman, employed by the defendant,
The court then, at the request of the plaintiff, charged that “ if the jury believe that defendants employed Blades as a detective to watch and care for their property, and intrusted him with the duty of arresting persons whom he believed were attempting to steal the same, and* these defendants are liable for his acts, and they cannot shield themselves from liability by procuring him to be appointed a special officer under the provisions of the act which has been referred to on the trial; ” that “ in order to hold defendants liable it is not necessary that plaintiff should prove that defendants gave express authority to Blades to make the arrest in this case, but it is sufficient if the jury shall believe that defendants generally authorized Blades to arrest persons whom he thought were trying to steal their property; ” that “ the jury may find this authority to exist from the fact that Blades is constantly making these arrests, with the knowledge of the defendants, and they continué to retain him in their employ.” The court further charged at the request of the plaintiff that if “no crime was committed or attempted to be committed by plaintiff, as testified to by Blades and Miss Clancey, defendants are liable whether Blades thought the plaintiff had committed a crime or not, provided that the arrest was made in the defendants’ service and pursuant to an employment to which his public employment was but incidental;” and also that “ the burden of proving the arrest was justifiable is on the defendants; that is to say, that the defendants must satisfy the jury by a fair preponderance of evidence that the plain
The defendants then requested the court to charge that, to make defendants liable, “ the jury must find that defendants or any of their employees requested Officer Blades to make the arrest; ” that ■ the “ defendants are not liable even if the jury find that the plaintiff did not commit a larceny, if the Officer Blades had an honest suspicion as to her actions and acted under a mistaken sense of duty ; ” that “ Officer Blades could not
The jury having found a verdict for the plaintiff, the main question is as to whether error was committed in submitting the case to the jury. I have searched this record in vain for evidence to justify a finding that the defendants had ever authorized Blades to make' an arrest, or that in exercising the power conferred upon him by law Blades was acting as an agent or employee of the defendants. The provision of the charter to which attention has been called authorized the police board to detail regular patrolmen, or to appoint and swear' in special patrolmen, to do special duty at any place in the city of New York upon application of a person or persons, corporation or corporations, giving to the officers thus appointed special powers and functions and-placing them under the direct authority and control of the chief of police and the rules and regulations of the police department and its general discipline. The person to be appointed such special patrolman was to be determined by' the police board, not by the person making the application.
In Woodhull v. Mayor (150 N. Y. 450) the precise question here presented was, I think, determined. That action was for false imprisonment. The plaintiff was arrested upon the Brooklyn bridge by a police officer and taken to the station house where the officer pre
.The court further said : “Bishop, as we have seen, was appointed by the trustees of the bridge, but his appointment was- made pursuant to the provisions of a statute. "Whilst he was specially charged with the duty of protecting the bridge, he was also required to protect the travel over the same, having the same powers with reférence thereto of other policemen appointed by the cities. It was as much his duty to look after the welfare of travelers from remote parts of the State or from foreign countries as it was that of the residents of the cities
In Sharp v. Erie Railroad Company (90 App. Div. 502) Wheeler was a policeman of the city of Salamanca and a deputy sheriff of the county. He was also in the employ of the defendant, with instructions to protect the company’s interest on the right of way, to keep tramps from trains and look after robberies that might occur at stations and on the freight cars, in the yards and on the tracks and in the station, and look after persons in an intoxicated condition on the company’s property, and generally to look after crimes committed against the railroad company on the right of way. While engaged in the performance of these duties, Wheeler discovered the plaintiff’s intestate stealing a ride on one of the defendant’s freight cars. The plaintiff’s intestate jumped from the car and ran from the defendant’s right of way into an adjoining piece of property. He was followed by Wheeler, who chased him from the defendant’s right of way, calling upon him to stop. After they had passed beyond the defendant’s right of way, Wheeler called upon him to stop, and upon his failure to do so, Wheeler fired a revolver, and the bullet from the revolver struck the plaintiff’s intestate and killed him. In an action to recover for the damages thus sustained the complaint was dismissed, and upon an appeal from the judgment entered upon the dismissal that judgment was affirmed. The court held as a matter of law that Wheeler’s act in making the arrest was not the act of the deféndant’s servant, as Wheeler’s duty to make an arrest was entirely independent of his
'■ In the case of Healey v. Lothrop (171 Mass. 263), where a special officer was appointed at the instance of a keeper of a place of amusement in Boston for the protection of his private property and paid for by him under the law of that State, it was held that he was not a servant of the place of amusement; and to the same effect are Dickson v. Waldron (135 Ind. 521); Hershey v. O’Neill (36 Fed. Rep. 171), and Brill v. Eddy (115 Mo. 604).
The only case which can be claimed to be opposed to this view is Tyson v. Bauland Co. (68 App. Div. 310), subsequently reported in 85. Appellate Division, 612, but that case is clearly distinguishable, for it appeared there that defendant had given special instructions to the police officer to submit all cases of shoplifting to the president of the company before taking action, and Mr. Justice Hieschbebg, in stating the opinion of the court, said that “ the question is not free from doubt, but I am inclined to the opinion that upon the facts of the case the jury might have properly found that the act of O’Reilly was done in the appellant’s service and pursuant to an employment to which his public appointment was but incidental.” It is not necessary for us to determine whether we will follow that case, as here there is no evidence to prove that the defendants ever authorized Blades to make an arrest, or that in following the plaintiff out of the store and arresting her he was acting under the authority of the defendants,, express or implied, or otherwise than in the exercise of the powers conferred upon him- by his appointment as a special policeman.
,If these views are correct it is quite clear that the defendants were not responsible for the act of Blades in making the arrest, and that the court committed error in that respect in submitting the question to. the jury. .. ■
It follows that the judgment and order appealed' from must be
McLaughlin, J., concurred; O’Brien, P. J., and Patterson, J., dissented.
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Concurrence Opinion
I concur with Mr. Justice Ingraham in his opinion in this case save in one respect. Miss Clancey was in the employ of Wanamaker; she did the searching of the plaintiff and was confessedly acting for the defendants, so that they were liable for her acts. What she did involved .a restraint of the plaintiff’s person. Therefore a question was presented for the jury. The case, however, was not tried upon this theory. For the act of Blades I do not think the defendants were liable. There should, therefore, be a new trial.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.