74 N.Y.S. 59 | N.Y. App. Div. | 1902
Lead Opinion
The appellant is a corporation and the proprietor of a large -department store in Brooklyn. The respondent was shopping in the store on the 22d day of August, 1898, and a part of the time was at the shirt waist counter. A Hrs. Gillin was also shopping at the same counter, having a satchel in which among other articles she claims there was twenty-five dollars in currency.. Hrs. Gillin missed her satchel and reported the fact to a floorwalker, by whom she was advised to station herself at the main exit door of the building and see if any one attempted to leave the place with her satchel. Meanwhile, a strange woman, presumably the thief, accosted the respondent and handed her the satchel, with the request that she give it to the owner who she said would be ■ found at the
This action Was thereafter commenced for damages against Mrs. Gillin, O’Reilly, and the appellant. At the close of- the case the complaint was dismissed by the court as. to Mrs. Gillin, and.the jury returned á verdict against the other defendants, from .the judgment entered on which the corporation alone appeals. There was some dispute as to whether the amount of money in the satchel Was tWenty-five or twenty dollars, and a finding either way could be supported. The facts were colored in various particulars by the Witnesses and were qualified by other facts not deemed material to a clear understanding of the. law involved.
The complaint contains bitt a single count, which might be either for false imprisonment or malicious prosecution. It was treated on the trial as a complaint, for both causes of- action, and the learned counsel for the respondent "state, in their brief that “ this is an action for" bpth malicious prosecution and false imprisonment.” At the commencement of the trial the appellant moved that the plaintiff elect which cause of action she intended to pursue, but the court refused to require her then so to do, and no exception was taken tó the ruling. Such election was not required at any stage of the case, hor was the motion renewed. On the contrary, at the close of the case the appellant moved to dismiss the entire cause of action, “ whatever it may be,” and each cause of action separately, all Which- motions were- denied and exceptions taken. The charge to the jury is not returned, and the necessary inference is that a recovery. was allowed, if, in the opinion of the jury, the facts supported either cause of action. -
. The.-two causes of action, however, could not be combined in á
The appellant’s connection with the false imprisonment must arise, if at all, from the facts that the occurrence took place upon its premises' and the arrest was made by its employee. It is claimed by the appellant that O’Reilly was not its employee in this transaction, or, at least, was not acting within the. scope; of such employment at the time, but that: he was discharging his official duty as a special patrolman. He was-appointed by virtue of the provisions of section 308 of the Greater New York charter (Laws of 1897, chap. 378), the material portions of which are as follows: “Special patrolmen, appointed in pursuance of law, may be dismissed by order of the police board; and while acting as such special patrolmen shall possess the powers, perform the duties, and be subject to the orders, rules and regulations of the police department in the same manner as regular patrolmen. Every such special patrolman shall wear a badge, to be prescribed and furnished by the police board. * * * The police board, whenever expedient, may on the application of any person or persons, corporation or corporations, showing the necessity therefor, detail regular patrolmen of the police force, or appoint and swear any number of special patrolmen, to do special duty at any place in The City of New York upon the person or persons, corporation or corporations by whom the application shall be made, paying, in advance, such regular or special patrolmen for their services, and upon such regular or special patrolmen, in consideration of their appointment, signing an agreement in writing releasing and waiving all claim whatever against the police department and The City of New York for pay, salary or compensation- for their services and for all expenses connected therewith ; regular patrolmen so detailed shall be paid at the same rate as provided for patrolmen in this act, but the regular or
The contention of the appellant is ■ that the effect of O’Reilly’s appointment under this section was to make him altogether a public officer and not at all the company’s servant, notwithstanding his duties were confined to the territory of the company’s property and he was wholly under the company’s pay, and the cases of Wells v. Washington Market Co. (19 Dist. Col. Rep. 385); Hershey v. O’Neill (36 Fed. Rep. 168); Tolchester Beach Improvement Co. v. Steinmeier (72 Md. 313); Dempsey v. N. Y. C. & H. R. R. R. Co. (146 N. Y. 290), and Wooclhull v. Mayor (150 id. 450) are cited in .support of the contention. It must be admitted 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 pur-' suant to an employment to which his public appointment was but incidental. It would seem that O’Reilly was in the appellant’s service- as a special officer before his appointment by the police department, as is shown by the letter written by the appellant to the board of police commissioners, stating that “ we would like to have Hr. Thomas O’Reilly appointed as a special officer. He has been in our employ as a special officer and we desire to continue him as such." The duty of protecting its customers is asserted on the appellant’s part in its answer, and within reasonable bounds is certainly enjoined by the law; the voluntary assumption of such duty
On the claim for malicious prosecution, I think the respondent failed to make out a case irrespective of the questions ,of probable cause and malice. The appellant did not prosecute her either before the police magistrate or the grand jury.' The complaint in the store was made by Mrs. Gillin, as was also the complaint in the Police Court, and she alone appeared and testified before the grand jury. At all. events the appellant did not appear at any time, made no complaint and took no apparent part in the prosecution. There is evidence tending to prove that on the way to the police station 'O’iteilly turned the respondent over to a policeman named Murphy* and that his active interest in the case then ceased. The learned trial justice dismissed the case against Mrs. Gillin with the apparent acquiescence of all the parties after all the evidence had been elicited, and if she, who made the accusation, personally demanded the arrest, and conducted the prosecution, cannot be held liable for malicious prosecution, I cannot conceive how the appellant could be held liable merely because Mrs. Gillin’s action was initiated on its
The judgment and order should be reversed and a new trial granted.
All concurred, except Goodrich, P. J., who read for affirmance.
Dissenting Opinion
(dissenting) :
There was neither demurrer nor motion before the trial to correct any imperfections in the complaint which prayed damages for false imprisonment and malicious prosecution, as might have been done upon the ground that the statement of the facts constituting each cause of action wTas not separate and numbered in accordance with section 483 of the Code of Civil Procedure, and while there are conflicting decisions whether or not the plaintiff could have been compelled at the trial to elect which remedy he would, pursue, I think the better opinion is that where the two causes of action are not separately stated, as is the fact here, the plaintiff should have been compelled to elect. Such a motion was made and denied, but no exception was taken.
I do not agree with Mr. Justice Hirschberg- that as the verdict may have been founded on one of two causes of action, i. e., false imprisonment or malicious prosecution, the judgment cannot be sustained unless the proof establishes both causes of action. On the contrary, I think that as the allegations and evidence were sufficient (as he writes) to establish a cause of action for false imprisonment, we might assume, if necessary to support the judgment in the absence of the charge from the record and in view of our ignorance of what questions were submitted to the jury,' that the verdict was based on that cause of action to sustain which it was only necessary to prove detention of the person and the unlawfulness of such detention.
We are .thus justified in assuming that the jury found in favor of the plaintiff on both causes of action, but whether they based their verdict on one cause or the other, the evidence is sufficient to sustain the verdict.
I think the judgment should- be affirmed.
Judgment and order reversed and new trial granted, costs to ' abide the event.