J.J. Newberry Co. v. Smith

• Decision Date: 22 June 1933
• Docket Number: 6 Div. 329.
• Citation: 149 So. 669,227 Ala. 234
• Parties: J. J. NEWBERRY CO. v. SMITH.
• Court: Alabama Supreme Court

149 So. 669

227 Ala. 234

J. J. NEWBERRY CO. v. SMITH.

6 Div. 329.

Supreme Court of Alabama

June 22, 1933

Rehearing Denied Sept. 28, 1933.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for false imprisonment by Thelma Smith, a minor, suing by her next friend, Mrs. Arra Smith, against the J. J. Newberry Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Hollis O. Black and Wm. E. Fort, both of Birmingham, for appellee.

BOULDIN Justice.

Action in damages for false imprisonment and assault and battery.

Among the questions for review is whether defendant, appellant here, was due the affirmative charge.

The evidence for plaintiff tended to show: Prior to the opening day of J. J. Newberry Store in the city of Birmingham, August 20, 1931, Mr. Newton, manager and alter ego of defendant in the matters here involved, applied at the police office of the city for uniformed policemen to be present and police the store during said day, for the purpose, among other things of protecting the stock of merchandise from shoplifting.

He was put in contact with officer Ballard, who undertook to furnish or assist in procuring the desired police force.

Certain policemen were at the time not on the city pay roll, but retained their positions, uniforms, and other insignia, for special services of this kind, to be paid for by the party desiring such service. Among these was Paul Robertson, who came on duty at the store, through officer Ballard, at 1 p m. on opening day, to relieve another officer, Saunders, who had another engagement at that hour.

There is conflict in the evidence as to whether Mr. Newton knew anything of Robertson's presence or had any personal contact with him. Suffice to say that, in either event, evidence tended to show Ballard's authority to procure the services of such personnel as were available, provided they were policemen in uniform. The men were in the pay of the defendant company while on duty. Although Robertson's name did not appear on the pay roll, some evidence tended to show this was pursuant to an understanding between Ballard and Newton that Saunders' name be still carried without noting the substitution.

Plaintiff's evidence further tended to show: About 2:30 p. m. on that day, plaintiff, a young lady, accompanied by her mother and sister, entered the store as a customer. She purchased a hat which was paid for at the time. At the suggestion of the saleslady she put the hat on, and carried the old one in a bag. She then went with her mother and sister to the dress department on the same floor. Presently Robertson approached from behind, caught her by the arm, jerked her round facing him, and asked: "Do you want to buy that hat you have on?" She replied she had already bought it and showed him the other hat in the bag. He asked if she could show him some one it was bought from. Both proceeded toward the hat counter, the officer pushing her. Many people were in the aisles. The saleslady promptly confirmed the purchase. Robertson then disappeared, saying nothing. On what facts or information he assumed to act in thus demeaning himself does not appear. It appears the saleslady had inadvertently left a tag on the hat when fitting it on the plaintiff. But this, in the absence of further evidence, would furnish him no lawful cause or excuse.

This line of evidence would support a finding that Robertson perpetrated a tort as claimed in the several counts of the complaint; an assault and battery in unlawfully laying hands on plaintiff, and false imprisonment by unlawful arrest, or restraint upon her freedom by force, or under compulsion of official power or authority.

The question of moment is whether defendant is liable for the act of Robertson under the doctrine of respondeat superior.

A party may be guilty of false imprisonment in procuring an unlawful arrest by a police officer acting solely as a public officer, as where such party voluntarily aids and abets the officer; or by false charges induces the officer to make an arrest, though the officer may act in entire good faith.

Of this class is the case of Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754, cited by appellant, and Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am. St. Rep. 32.

Such is not this case. It is not claimed that the manager or other responsible agent of defendant directed or instigated the action of Robertson or had any knowledge thereof at the time.

The inquiry is whether he was acting as an employee of defendant within the line and scope of his employment, or is his act to be referred, as matter of law, to his official position as a police officer?

Former decisions of this court, and a great many in other jurisdictions, have dealt with liability of the principal where the wrongdoer occupies the dual position of an employee and a police officer.

Many states of fact have been considered:

Cases wherein an employee of the party's own selection, with duties which can be legally performed, or...