Opinion
December 29, 1911.
Nicholas W. Hacker, for the appellant.
Thomas Fahey, for the respondent.
The action is for false arrest and was brought against the corporation defendant and one Smith, who is alleged to have been its manager. Judgment has gone against Smith, but the complaint was dismissed as against the corporation at the close of the plaintiff's case, apparently upon the ground that Smith had not been shown to have been the manager of the restaurant owned by defendant. From the judgment entered upon this dismissal plaintiff appeals. We think that the appeal must prevail. In the first place the answer admits (by not denying) that Smith was the manager. The complaint alleges that Smith was respondent's "manager and superintendent." The answer denies that he was "superintendent," leaving undenied the allegation that he was "manager." It is said that the attention of the court was not called to this admission in the pleading, and that the appellate court should not, therefore, reverse the judgment on that ground. If this were the only reason urged for a reversal, the objection might carry weight, but the evidence adduced by plaintiff furnished ample ground for a finding by the jury that Smith was in fact the manager of the restaurant in which plaintiff was arrested, and that Smith acted within what he supposed to be the scope of his authority when he procured the arrest to be made. Upon the evidence as it stood when the complaint was dismissed a verdict by the jury that Smith was respondent's manager, and that respondent was liable for his tort would have been entirely justified. The dismissal of the complaint was, therefore, erroneous.
The judgment appealed from is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.
INGRAHAM, P.J., LAUGHLIN, MILLER and DOWLING, JJ., concurred.
Judgment reversed and new trial granted, costs to appellant to abide event.