Summary
In Feneran v. Singer Mfg. Co. (20 App. Div. 574) it was held that the vendor of goods who employs a man to collect installments and instructs him that he must not take the goods for non-payment of an installment, is not liable for an assault while attempting to retake the goods because of non-payment of an installment, as such an act is not within the scope of the collector's employment; and that in the absence of instructions not to take the goods, no liability would exist on the part of the vendor.
Summary of this case from Zucker v. Lannin Realty Co., Inc.Opinion
October Term, 1897.
William H. Hamilton [ Rastus S. Ransom with him on the brief], for the appellant.
Alfred E. Mudge [ Arthur C. Salmon with him on the brief], for the respondent.
The plaintiff has recovered damages against the defendant to the amount of $1,200 for an assault and battery committed upon her by one William H. Ross, in the city of Brooklyn on the 11th day of July, 1895. She had purchased a sewing machine from the defendant on the installment plan for which she was to pay sixty-five dollars in all. Ross was a collector and salesman in the defendant's employ. He called at the abode of the plaintiff to collect an installment of three dollars. Mrs. Feneran offered him two dollars, saying that was the best she could do to-day; Ross declined to accept the two dollars, and, declaring with an oath that he would have the machine, sprang into the bedroom where it was standing, seized it and began to drag it out. Mrs. Feneran attempted to detain the machine, whereupon Ross struck her, knocked her down and kicked her, inflicting injuries for which the verdict would be none too large if it were against him personally instead of against the Singer Manufacturing Company.
It does not seem to us, however, that the judgment can be maintained against the corporation. The basis of liability in such cases is clearly defined. The employer is not liable unless the wrongful act is done in the course of the employment. ( Meehan v. Morewood, 52 Hun, 565; affd. on opinion at General Term, 126 N.Y. 667.) The proof was clear that the employee here had no authority to take away a machine for the non-payment of an installment or for any other reason. Ross had been a salesman, and when he began to work as a collector for the defendant he was expressly instructed that if he could not get a payment which he sought to collect, he must not in any case touch or take the machine. Even without this instruction in the negative, I do not think any authority to seize and carry away the machine could be implied from the mere employment of the assailant as a collector, and I have so held at Circuit. ( Marciano v. Singer Manufacturing Company, Kings Co., Nov. 1894, unreported.)
In the cases to which I have referred I am committed to a view of the law which is fatal to the recovery in the present action unless the averments in the 2d paragraph of subdivision 2 of the answer may fairly be regarded as an admission that Ross acted with the authority of the defendant corporation in his efforts to take and carry away the machine. Upon the oral argument I was inclined to think that the answer might be thus construed; but a careful examination of the record satisfies me that it was not so intended by the pleader, or so understood by the counsel for the plaintiff or by the court. The proof in behalf of the defendant and the discussions on the various motions show that it was the contention of the defendant throughout that Ross had no authority, general or otherwise, to retake the machine from a delinquent purchaser. Under these circumstances, the practical construction which both the parties and the court put upon the pleading during the trial should prevail with us here.
As the case stood when all the evidence was in, there was no proof sufficient to justify a finding by the jury that the servant in committing the assault was at the same time acting within the scope of the master's employment. The motion to direct a verdict for the defendant should, therefore, have been granted.
I think we ought to reverse the judgment and order a new trial.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.