Long v. Eagle 5, 10 and 25 cent Store Co., Inc.
| Decision Date | 21 September 1938 |
| Docket Number | 17. |
| Citation | 198 S.E. 573,214 N.C. 146 |
| Parties | LONG v. EAGLE 5, 10 AND 25¢ STORE CO., Inc., et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; J. H. Clement, Judge.
Action by A. R. Long against Eagle 5, 10 and 25¢ Store Company Inc., and another, for damages for false arrest. Defendant's motion for a nonsuit at the conclusion of plaintiff's evidence was refused, and named defendant appeals.
No error.
In action against master for wrongful act of servant, where there is doubt as to servant's scope of authority, judge is required to resolve doubt in favor of plaintiff and submit evidence to jury, upon ground that master had placed servant in position to do wrongful act.
The plaintiff brought this action to recover damages for a false arrest which in his complaint he alleges was brought about by the Store Company through J. E. Senter, Assistant Manager of defendant's department store in Canton. The Store Company answered, denying the material allegations of the complaint and then as a further defense denied liability upon the ground that the assistant manager was not acting within the scope of his authority in making the arrest.
The plaintiff testified that he went to the department store of the defendant in Canton, and while his wife was making other purchases, he was looking about the store, and purchased and paid for a five cent screw driver, which he placed in his pocket unwrapped, which he was permitted to do by Miss Smathers, a salesgirl who sold him the screw driver. He remained in the store about twenty minutes, and when his wife had finished her purchases plaintiff walked down toward the front door. Senter had come down toward the front from the back end. When plaintiff walked to the door there was a police car waiting in front of the store, while Senter stood on the right of the door and a policeman stood on the left. The policeman in the car called to Long and told him to come, that he would have to go to the town hall. Plaintiff protested that he did not have time to go, but was told by the policeman that he would have to go. He was compelled to go with the two policemen and Senter down to police headquarters, where he was compelled to empty his pockets, laying out upon the table his knife, pocketbook, a little daybook, his eyeglasses, and the screw driver. Quoting from the record: "When they said that was all I had, Senter said that was the screw driver I had and I asked him if he had me arrested for stealing a screw driver, and he said he saw me put it in my pocket without paying for it, and I said I had bought it, and he said, 'Who from'? and I said, 'From Katherine Smathers.' At the time of this conversation and at the time I pulled the articles out of my pocket Senter was standing by my side on the right side.
After I had taken the things out of my pocket the police felt over me and searched me and Senter took the screw driver and said that was what I was arrested for."
After the explanation made by plaintiff, Senter and a policeman returned to the store, and another policeman in charge of the plaintiff, the latter still under restraint, followed. At this time plaintiff had the screw driver.
Upon returning to the store, plaintiff returned the screw driver to Senter and demanded his money back, and Senter returned the five cents paid for it. At the same time, Mrs. Long demanded back the money which she had paid for her purchases and, upon Senter's order, the money was refunded to her and she returned the purchases and they left the store.
It is not necessary here to summarize the evidence relating to the good character of the plaintiff and other testimony relating to the quantum of damages.
Whitlock, Dockery & Shaw, of Charlotte, and F. E. Alley, of Waynesville, for appellant.
Smathers & Meekins, of Asheville, for appellee.
The defendant relies entirely on the motion for nonsuit at the conclusion of the plaintiff's evidence. It insists that this motion should have been allowed upon the ground that there was no evidence from which a valid inference could be drawn that (1) Senter, the Assistant Manager, caused the arrest to be made, and (2) that he was acting within the scope of his duty and authority and about his master's business in making the arrest.
1. The evidence, both direct and circumstantial, is sufficient for submission to the jury on this point.
Senter, with timely precision, preceded the plaintiff to the exit, and when the latter came out of the door he found Senter standing on one side of the door, a policeman on the other side, and an officer in a police car, in readiness for his reception. The officers, without parley, proceeded to make the arrest. Information had obviously been given by the only person shown to have entertained the notion that plaintiff was a fit subject for police attention,-Senter. Senter got into the police car and was personally present and actively participating in the search, identifying the screw driver, when found on plaintiff's person, as being the object of the search.
When asked by plaintiff if he had had him arrested for stealing a screw driver, Senter replied that he had seen him put it in his pocket without paying for it.
Defendant's counsel give more serious attention to...
To continue reading
Request your trial