McLoughlin v. New York Edison Co.

• Decision Date: 19 November 1929
• Citation: 252 N.Y. 202,169 N.E. 277
• Parties: McLOUGHLIN v. NEW YORK EDISON CO.
• Court: New York Court of Appeals Court of Appeals

252 N.Y. 202

169 N.E. 277

McLOUGHLIN

v.NEW YORK EDISON CO.

Court of Appeals of New York.

Nov. 19, 1929.

Action by George McLoughlin against the New York Edison Company. From a judgment (225 App. Div. 846, 232 N. Y. S. 622) of the Appellate Division, First Department, affirming a judgment of the Trial Term which set aside the verdict of a jury in favor of plaintiff and dismissed complaint, plaintiff appeals.

Reversed, and new trial granted.

Cardozo, C. J., and Lehman, J., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

Harold R. Medina, Rufus C. Van Aken, and Charles Eno, all of New York City, for appellant.

Charles I. Taylor and Thomas H. Beardsley, both of New York City, for respondent.

KELLOGG, J.

A customer complained to the defendant that one of its employees, while visiting her apartment to perform a service for the defendant, had stolen a valuable ring therefrom. The plaintiff, who proved to be the employee who had made the visit, was interviewed by two men, Hatch and Donovan, who were employed in the special service department of the defendant. According to the story told by the plaintiff, Hatch laid his hand upon the plaintiff's shoulder stating that a ring had been stolen from the apartment of a customer, and saying, ‘Come on with us.’ The plaintiff asked why he should go. Thereupon Hatch said, ‘You stole one of those rings and you are under arrest.’ The plaintiff was then taken to a police station by the two men. Hatch told him that he was under arrest and must remain in the station house. He stayed there from 10 in the morning until 5 in the afternoon. At noon he started to go out for lunch, but was told by an officer that he could not go, since he was ‘under arrest.’ At 5 o'clock the plaintiff was identified by the defendant's customer as the employee who had visited her apartment. He was compelled to remain over night in a station house. Several days later, after a complaint had been filed, the customer appeared in court, stated that she had found the ring, and that no theft had been perpetrated. Accordingly, the complaint against the plaintiff was dismissed.

It is immaterial that Hatch and Donovan, the defendant's servants, employed no physical force against the body of the plaintiff to restrain him. It is enough that, when force sufficient to dominate the situation was displayed, the plaintiff yielded submission and journeyed peaceably, though under compulsion, to the police station. Stevens v. O'Neill, 51 App. Div. 364, 64 N. Y. S. 663; Id., 169 N. Y. 375, 62 N. E. 424. It is clear, also, that the arrest and imprisonment, if made, were without justification. Private persons may not make an arrest except for a crime committed in their presence, or for a felony which has been committed although not in their presence. Code Cr. Proc. § 183. Where the detention is illegal, an action for false imprisonment will lie, without regard to the innocence of the defendant in respect to his intentions. Snead v. Bonnoil, 166 N. Y. 325, 59 N. E. 899. ‘It follows that a cause of action for false imprisonment accrues whenever a person is arrested and detained by one not an officer acting without a warrant when no crime has in fact been committed by him, no matter with what good faith the party who caused the arrest acted.’ Johnston v. Bruckheimer, 133 App. Div. 649 at page 652,118 N. Y. S. 189, 191. Hatch and Donovan were private persons; they made an arrest without a warrant for a felony which had never been committed. Consequently, they were guilty of a false imprisonment. The only debatable question relates to the liability of the defendant, their employer, for the tort which, if the plaintiff spoke the truth, they unquestionably committed.

It is not the test of the master's liability for the wrongful act of the servant, from which injury to a third person has resulted, that he expressly authorized the particular act and conduct which occasioned it. In most cases where the master has been held liable for the negligentor tortious act of the servant, the servant acted not only without express authority to do the wrong, but in violation of his duty to the master.' Per Andrews, J., in Rounds v. Del., L. & W. R. R. Co., 64 N. Y. 129, at page 134,21 Am. Rep. 597. Where the accomplishment of a given task is committed to a servant, and its performance involves the exercise of discretion and judgment concerning the means to be employed, the master may be responsible although the servant has abused his authority and been guilty of a wrong in executing his commission. Same case. The master is liable when the act is done ‘in the prosecution of the business that the servant was employed by the master to do’ (Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361); when it is done while the servant is engaged in his master's business ‘with a view to the furtherance of that business and the master's interest’ (Mott v. Consumers' Ice Co., 73 N. Y. 543); when the wrongful act is in the course of employment and not ‘outside of it and to accomplish a purpose foreign to it.’ (Ochsenbein v. Shapley, 85 N. Y. 214).

The bureau of special service, to which Hatch and Donovan were attached,...