Opinion
October, 1897.
James C. De La Mare, for appellant.
Morris Cukor, for respondent.
Conceding the correctness of the manner in which the issues were submitted to the jury, the appellant contends that the plaintiff's proof was insufficient to entitle him to that submission and that the denial of the motions for the dismissal of the complaint, as made when the plaintiff rested and at the close of all the evidence, was error.
Accordingly the inquiry is whether there was any evidence upon which the jury could find in favor of the cause of action alleged, putting aside such evidence as appeared in contradiction (Kraus v. J.H. Mohlman Co., 18 Misc. 430), and from our examination of the record we are led to say that there was.
The plaintiff was employed by the defendant benefit association as a collection agent and was discharged on the 7th day of September, 1895, after an employment of about one year and a half. His immediate superior was one James H. Howell who was manager and in exclusive charge of the defendant's "industrial department," his duties including the hiring and discharging of agents and the superintendence of their collections and accounts; his control was so exclusive that the defendant never looked to him for statements of account.
At the time of the plaintiff's discharge a certain sum was due him from the defendant for salary, and on the day of his dismissal, but before he was actually dismissed, he had collected $1.30 in the usual course of his duties.
When notified by Howell that he was discharged, he stated to the latter that he had made collections that day and wished to get his salary and to settle his account; he testified that in answer to this "Mr. Howell said I would not get any money and told me to get out of here."
Some days later the plaintiff met Howell upon the street and was then threatened with arrest unless he should promise to cease soliciting business, for some other benefit society, from among the defendant's members, and on the 18th of September he was arrested upon a charge of larceny preferred by Howell. The complaining affidavit setting forth the fact that this plaintiff had collected $1.30 on the 7th day of September for premiums due the defendant; that he had failed to return it to the deponent and that the collection had been made after the plaintiff's discharge from the defendant's employ.
At the time of the plaintiff's trial, before the Court of Special Sessions, Howell was present accompanied by one of the defendant's directors, Frantzen, and some other officers of the society, and, after Howell and Frantzen had both testified against the plaintiff in support of the charge as preferred, he was acquitted.
Upon this state of facts it seems clear that an action for malicious prosecution could be maintained, and against this defendant as the party chargeable.
Taking this evidence as true, there was, of necessity, an absence of probable cause for the arrest, since Howell must have known that the plaintiff became possessed of the money in question when still employed by the defendant, and so authorized to collect it.
Not only was the money, thus lawfully in the agent's hands, not demanded of him, but he was refused an opportunity of rendering an account of it on the day of its collection, and there was, accordingly, no possible reason for attributing to him any criminal intent.
Whether or not there was any malice in fact, and it appears that there was some proof of such, the preferment of a charge of larceny under these circumstances was certainly evidence of malice in law. Burhans v. Sanford, 19 Wend. 417; Voltz v. Blackmar, 64 N.Y. 440; Wass v. Stephens, 128 id. 123; Kolzem v. Railroad Co., 20 N.Y.S. 700.
That the defendant is a corporation does not affect the fact of its liability for malicious prosecution (Willard v. Holmes, Booth Haydens, 142 N.Y. 492), if it be shown that the wrong was attributable to the corporation and was not the mere personal delictum of the agent.
Here the individual who caused the arrest, Howell, had exclusive executive authority with regard to the collections made by the agents and touching the state of their accounts, and since the corporation accepted the results of his management, without requiring him to account, the reasonable inference may be drawn that he was expected to fully administer the business of the corporation, in this regard, adopting any means for the protection of its assets, thus in his hands, which the corporation itself would have adopted under the same circumstances.
His testimony was that he preferred the charge of larceny against the plaintiff, thinking that it would favor the interests of the company and that, while he had no express authority from the defendant to cause the arrest, he was actuated by no motives of personal malice against the plaintiff.
The case appears to come well within the rule as stated in Mott v. Consumers' Ice Co., 73 N.Y. 547. "For the acts of the servant, within the general scope of his employment, while engaged in his master's business, and done with a view to the furtherance of that business and the master's interest, the master will be responsible, whether the act be done negligently, wantonly or even willfully. In general terms, if the servant misconducts himself in the course of his employment, his acts are the acts of the master, who must answer for them." See, also, Lynch v. Metropolitan Ry. Co., 90 N.Y. 77, 86.
Moreover, there was evidence from which the jury could have found that Howell's act was ratified by the corporation, since the trial of the charge was conducted in the presence of the defendant's officers and the charge was sought to be substantiated by the testimony of one of the directors.
Clearly, then, this was no case for a nonsuit.
Exceptions were taken to the admission of evidence of conversations had by the plaintiff with Howell and Frantzen on the day of his discharge from the defendant's employment, and of his conversation with Howell, in the course of which he was threatened with arrest; it appears, however, that all this testimony had a direct bearing upon the questions of malice and of probable cause, and there was unquestionably a sufficient foundation for the admission of the statements of these individuals, so far as elicited, against the defendant.
Examination of the other exceptions taken discloses no error prejudicial to the appellant, and we are satisfied to affirm the judgment.
Judgment affirmed, with costs.
DALY, P.J., and McADAM, J., concur.
Judgment affirmed, with costs.