Opinion
(Filed 22 December, 1908.)
1. Arrest — Restraint — Evidence Insufficient.
To constitute sufficient evidence of such personal restraint as will amount in law to an arrest it must be more than an unasserted purpose and intention; and when the evidence only tends to show that defendant's employees threatened the arrest of feme plaintiff's husband, in his absence, while she was on defendant's premises, and said they would give her the warrant of arrest and permit her to follow him, upon payment of two dollars on account of a stove her husband had bought and left in its house, which she accordingly paid, it does not constitute such restraint as will amount to an arrest in law, when she made no attempt to leave under circumstances altogether favorable.
2. Same — Principal and Agent — Corporations — Superintendent.
An agent authorized to collect for his principal has no implied authority, in his endeavor to collect, to arrest the debtor upon warrant, or put such restraint upon his wife as will amount to an arrest in law; and the principal is not responsible for such unauthorized or unratified acts. This principle applies to a corporation, as principal, acting through its superintendents as agents.
ACTION tried before Peebles, J., and a jury, at November Term, 1907, of BURKE.
E. B. Cline and A. A. Whitener for plaintiffs.
S. J. Ervin and Smathers Morgan for defendants.
CLARK, C. J., dissenting, arguendo.
This action was brought by the feme plaintiff to recover damages for an alleged false and wrongful arrest and detention. S. Montgomery Smith and W. H. Reynolds were named as defendants in the summons, but were never served, and the case proceeded to trial as to the Champion Fiber Company. There was judgment of nonsuit at the conclusion of the evidence, and plaintiffs appealed.
The evidence tends to prove that D. A. Powell, the plaintiff's husband, was an employee of defendant company, lived in one of its houses and owed defendant $11 for a stove; that, becoming dissatisfied, he quit defendant's service, left the stove in the house (3) he had lived in, packed his household goods in a wagon, and started walking ahead on the road to Canton, leaving his wife and child on the wagon to follow after him. The wagon not overtaking him, he turned back, and shortly thereafter met the wife following with the wagon.
The feme plaintiff testified that after her husband had gone on ahead, leaving the wagon in the defendant's commissary yard, and after the wagon had stood there about two hours, "I spoke to Montgomery Smith first. He was close to the wagon, I was on the ground. I asked him why it was that he detained me, that the stove was in the house and there was nothing in the wagon that belonged to him. He said they did not loan out things to accommodate people. He then walked off and went back to the end of the wagon. Harry Reynolds came up."
At this point the court permitted plaintiff's counsel to state what they proposed to prove as further tending to show the liability of the defendant. Counsel stated that they proposed to show that Reynolds was assistant superintendent in charge of the commissary; that one Huggins Smith, the superintendent, and Reynolds had the paper writing marked "A" in their possession (the paper writing is a warrant for arrest of D. A. Powell, signed by R. L. Ray, J. P.); that they stopped Mrs. Powell in the yard and Reynolds told her in the presence of Smith that they were going to arrest her husband and send him to jail, and were going to hold her until the officers came back with her husband; that they then went and looked at the stove in the house and returned to the wagon, when Reynolds said if Mrs. Powell would pay $2 they would surrender her the warrant for her husband and she could go; that she paid the $2 (for the use of the stove, evidently) and drove on her way.
Upon intimation from the court that the plaintiff could not recover, she submitted to a nonsuit and appealed.
There are two reasons why the plaintiff can not recover of defendant upon this state of facts:
1. There is not sufficient evidence of such personal restraint as will amount in law to an arrest. Her person was not touched or her liberty restrained by any kind of force or show of force. The conduct of Smith and Reynolds was certainly not to be commended, but there is nothing in it to indicate any actual forcible detention of plaintiff. A mere unasserted purpose or intention to do so is not sufficient. In the (14) second edition of the American and English Encyclopedia of Law, vol. 12, p. 734, it is stated that, "In order to constitute an unlawful imprisonment where no force or violence is actually employed, the submission must be to a reasonably apprehended force, the circumstance merely that one considers himself restrained in person not being sufficient to constitute a false imprisonment unless there is in fact a reasonable ground to apprehend a resort to force upon an attempt to assert one's liberty." The evidence does not show that the feme plaintiff in this case in any way attempted to assert her liberty nor to cause her wagon to move, but that she waited without any reasonable apprehension of force, or else because her driver did not see fit to move the wagon.
It is held by all the authorities that the act relied upon as an unlawful arrest in order to constitute false imprisonment must have been intended as such and so understood by the party arrested, or there can be no imprisonment. 12 A. E. Enc., p. 736; where all the cases are collected.
The evidence does not show that the feme plaintiff considered herself under arrest, or that any such invasion of her personal liberty was put into effect. While Reynolds may have told the feme plaintiff he was going to detain her, he took no steps to do so. He and Smith at once walked off to the house and examined the stove and on their return settled the controversy. So far as the evidence discloses, Mrs. Powell could have driven off at any moment.
2. There is no allegation in the complaint, or any evidence to support such allegation had it been so alleged, that this tort was committed by Reynolds and Smith within the scope of their authority in furtherance of the master's business, or that the master ratified and affirmed their acts.
It was the duty of Smith to collect debts due the defendant, and if the husband was indebted to defendant, to use due diligence in collecting such debt, but he was not authorized to arrest the wife on account of the debt any more than a stranger.
The case, we think, comes within the principles so clearly stated by Justice Hoke in Sawyer v. R. R., 142 N.C. 1, and by Justices Walker and Connor in their dissenting opinions in Stewart v. Lumber Co., (15) 146 N.C. 111 and 85. While the writer differed from his last-named brethren in the application of the law as laid down by them to the peculiar character of the Stewart case, which dealt with conditions and circumstances attending the operation of locomotive engines, their opinions and the authorities cited in them are convincing that, upon well-settled principles, the plaintiff can not recover of the defendant upon the facts of this case.
Affirmed.