Eastman v. Leiser Co.

Decision Date21 January 1921
Docket NumberNo. 21861.,21861.
Citation148 Minn. 96,181 N.W. 109
PartiesEASTMAN v. LEISER CO. et al.
CourtMinnesota Supreme Court


Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by Betty Eastman against the Leiser Company and Benjamin Blumenthal and Marie Balfany for malicious prosecution. From a judgment directing a verdict for defendant Blumenthal and granting a new trial to defendant Balfany and in favor of defendants Leiser Company notwithstanding the verdict on its motion for new trial or for judgment, plaintiff appeals. Remanded for judgment on verdict without prejudice to renewal of defendants' motion for new trial.

Dibell, J., dissenting.

Syllabus by the Court

One who sets the machinery of the criminal law in motion causes the prosecution,’ as that term is used in the law of malicious prosecution. The evidence is sufficient to show that defendant Leiser Company's employees caused the prosecution of plaintiff.

The evidence sufficiently shows that, under rules stated in Smith v. Munch, 65 Minn. 256, 68 N. W. 19, defendant company was liable for the acts of its manager in charge of its store.

Where another employee acts under authority of a manager who has authority in the premises, the company is liable for the acts of both.

The burden is on plaintiff to prove malice and want of probable cause. On the subject of probable cause it is for the jury to determine what facts exist and for the court to determine the inferences to be drawn from the facts and whether given facts establish want of probable cause. On appeal the court will consider and weigh the evidence bearing on probable cause as if presented there, in order to determine the correctness of the determination below.

The evidence in this case is such as to sustain the jury's finding of want of probable cause.

The evidence is sufficient to sustain the jury's finding of malice. Andrew Nelson and John Cedergren, both of Duluth, and Albert Schaller, of St. Paul, for appellant.

Baldwin, Baldwin, Holmes & Mayall and Benjamin M. Goldberg, all of Duluth, for respondents.


Action to recover damages for malicious prosecution. The court directed a verdict in favor of the defendant Blumenthal. The jury returned a verdict against the other defendants for $7,737.25. The court granted a new trial to defendant Marie Balfany, and, on motion in the alternative for judgment or for a new trial, gave judgment for the defendant Leiser Company notwithstanding the verdict. From this judgment plaintiff appeals.

Defendant Leiser Company operates a ladies' garment store in Duluth. In 1917, defendant Blumenthal was its manager, defendant Marie Balfany, a saleslady. On November 22, 1917, a young woman called at the store and purchased a dress of defendant Marie Balfany for $12.50. In payment, she gave a $20 check, payable to Esther Holmgren and purporting to be signed by E. P. Alexander, a business man of Duluth, and she was given the dress and $7.50 in change. On Monday, November 26, it was discovered that the check was a forgery. Defendant Blumenthal took the matter up with defendant Marie Balfany. Mrs. Balfany said she remembered the purchaser and could identify her. Blumenthal then told her she had probably better take the check to police headquarters. She did so, gave such information as she had and reported back to Blumenthal. Some time before this, a forged check bearing the name of E. P. Alexander, payable to Esther Holmgren, had been passed at Gray's store in Duluth. Plaintiff had at one time been a domestic servant in the Alexander home and she was investigated and sent for by the police, but the saleslady at Gray's store who had taken the check would not identify her as the guilty person and she was released. The police, remembering this circumstance, directed their attention to plaintiff again and asked Mrs. Balfany to accompany them to see her. Mrs. Balfany went, with the consent of Blumenthal, and on the time of the Leiser Company. They found plaintiff, employed as a domestic, in the family of John Wickstrom. On seeing plaintiff, Mrs. Balfany says she identified plaintiff positively as the girl who passed the check, though plaintiff testified she said she was not sure. On her identification, the police arrested plaintiff and took her to the police station and imprisoned her there. Mrs. Balfany reported back to Blumenthal that she had identified plaintiff and that she had been arrested. While at the Wickstrom house, Mrs. Balfany, with the detectives, searched plaintiff's room, coaxed her to come along with the detectives, went to the police station to see her the same evening and among other things, asked her what was her object in forging that check. Next day she went with detectives to the home of plaintiff's married sister, and searched plaintiff's trunk, which was found there, for the dress, but neither there nor at the Wickstrom's did she find the dress or any incriminatory evidence.

Defendant Leiser Company is an Illinois corporation. Defendant Blumenthal was in charge of the Duluth store. No officer of the company was located there and no employee above Blumenthal. He had charge of all the employees there and of the business of the store. He testified that it was his duty to look after the merchandise in the store and see that it was protected, that if any of it was stolen or removed by fraud, any one should come into the store and pass a forged check and obtain goods thereby, it was one of his duties and part of his business to see that the guilty person was apprehended and punished, that he made no report of such things to Chicago, but such matters were left to his judgment. He afterwards denied this testimony and said it was his duty in such cases to consult the company's attorney in Duluth and to ‘consult them in Chicago,’ but he admitted that he did not consult any attorney in this case and that this case had never been reported to Chicago.

The day after plaintiff's arrest, the chief of detectives called Blumenthal. Blumenthal asked what the police proposed to do. The chief told him it was ‘up to him if he wanted to make a complaint’ and sent him to the county attorney. Blumenthal went, and the county attorney, after conference with him and the police officer, prepared a complaint. Blumenthal signed the complaint, procured the warrant and took it to the police station. While there he accompanied a detective to see plaintiff in the jail. The detective took plaintiff in hand, hold her ‘sternly and vigorously’ that she was guilty, or that he believed she was, and that she had better admit it. Blumenthal was present during this interview. Plaintiff testified that during the course of it, Blumenthal said he saw plaintiff in the store buying the dress. Blumenthal denied this. Blumenthal was in court at the time of plaintiff's arraignment and also through the whole of the preliminary examination, though he was not a witness. On one occasion during the pendency of the case, Mrs. Balfany testified, she went to Blumenthal and told him she did not want to testify against a working girl and that she was going to see the police, and that Blumenthal told her if she ‘could get out of it he would drop the thing.’

Plaintiff was tried and acquitted. Thereafter, in April, 1918, the real forger of the Alexander check called at the Leiser store and attempted to pass another forged check. Blumenthal called the police and testified that, in so doing, he acted ‘within the scope of his employment.’ On another occasion he ‘prosecuted’ a man for taking things from the store, this time after consulting Chicago and also the company's local attorney.

[1] We have no trouble in holding that defendant Blumenthal, in conjunction with defendant Marie Balfany, ‘prosecuted’ plaintiff, as that term is used in the law of malicious prosecution. They set the machinery of the criminal law in motion. That constitutes prosecution. Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746;Smith v. Munch, 65 Minn. 256, 259, 68 N. W. 19; 26 Cyc. 18.

[2] 2. Nor have we any difficulty in holding that the Leiser Company was responsible for the acts of Blumenthal. Smith v. Munch, supra, is decisive of this. The rule, laid down there, and often repeated since, is, that an employer is responsible for the torts of his employee done with a view to the furtherance of the employer's business, whether the same be done negligently or willfully but within the scope of his agency. The fact that the employee may have exceeded his authority does not alter the rule. In later cases, it has, in other words, been said, the employer is liable if the act is committed in the course and within the scope of the agency, or, as sometimes expressed, with a view to the furtherance of the employer's business and not for a purpose personal to himself. Larson v. Fidelity Mutual Life Ass'n, 71 Minn. 101, 73 N. W. 711;Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133;Sina v. Carlson, 120 Minn. 283, 139 N. W. 601.

The facts of the present case bring it within the rule. Blumenthal's own testimony is that he was acting within the scope of his agency and authority and with a view to the furtherance of his employer's business. Whether he exceeded his authority in proceeding without legal advice is, under the principles stated in Smith v. Munch, supra, not important.

[3] 3. Come now to the question of liability of defendant Leiser Company for the acts of Mrs. Balfany. Whether it was within the scope of her authority as a saleslady to institute a prosecution such as this may be doubted, though she, herself, testified, that what she did was for the purpose of furthering the interest of the Leiser Company's store, and that she...

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