Parrish v. Boysell Mfg. Co.

• Decision Date: 16 December 1936
• Docket Number: 524.
• Citation: 188 S.E. 817,211 N.C. 7
• Parties: PARRISH v. BOYSELL MFG. CO. et al.
• Court: North Carolina Supreme Court

188 S.E. 817

211 N.C. 7

PARRISH v. BOYSELL MFG. CO. et al.

No. 524.

Supreme Court of North Carolina

December 16, 1936

Appeal from Superior Court, Gaston County; Frank S. Hill, Special Judge.

Action by Mary C. Parrish against the Boysell Manufacturing Company Elaine Tucker, and another. From a judgment for plaintiff against defendants named, such defendants appeal.

No error on appeal of the last-named defendant, and on appeal of the first-named defendant, judgment reversed.

Alleged agent's extrajudicial declarations are inadmissible to establish fact of agency; such declarations being regarded as hearsay.

Civil action for false imprisonment or false arrest.

The corporate defendant is engaged in the manufacture of rugs mats, bedspreads, etc., and employs a number of women, 40 or 50, to operate its sewing machines. The night shift works from 5:15 p. m. to 1:45 a. m., with half an hour for lunch from 9:30 to 10 o'clock. The plaintiff was so working on the night of February 8, 1936, when Miss Elaine Tucker "assistant superintendent in charge of the girls room," or "instructor" to see that right colors are used, announced that two of the girls had lost their weekly wages, which had been paid to them that night and suggested that a search be made to see if the money could be found. This was done.

They went through each spread which had been made that night.

Plaintiff testifies: "Miss Tucker said that she had talked with Mrs. Fuller over the 'phone and that Mrs. Fuller had given her instructions to fasten the doors and search every one (Objection and motion to strike; overruled; exception). * * * I said, 'Well, she can't do that.' * * * I told Miss Tucker that I did not want to be searched and that I did not have the money and knew nothing about it. * * * Then I said, 'Well, if it has to be done and I can't go home, come on and lets get through with it, so that I can go home.' * * * It was after 2 o'clock and we went over into another room where Miss Tucker searched me. * * * Miss Tucker said she had called two policemen."

Cross-examination "We were all wanting the girls to get their money. We were all willing to co-operate. I wanted to be free from suspicion, but I was not willing to be searched."

Miss Tucker's testimony is somewhat different: "All the employees in the room unanimously asked to be searched. No one objected to being searched. Mrs. Parrish asked to be searched. * * * I did not touch her, she asked me the second time to search her. * * * I did not have authority to search them. * * * I was not carrying out Mrs. Fuller's instructions."

Mrs. L. B. Fuller is secretary and treasurer and local manager of the corporate defendant. She was at home on the night in question, confined to her bed with the "Flu." She knew nothing of the occurrence until it was all over. Miss Tucker never talked with her until after the search had been made, and no authority was given to Miss Tucker to make the search. "The Boysell Company had no interest in this money. * * * It did not belong to the Boysell Company, but to the girls. * * * Neither was it of any benefit to Elaine or myself whether they found it." No money was ever found.

At the close of all the evidence, the motion for judgment of nonsuit was allowed as to Mrs. L. B. Fuller, and overruled as to the other defendants.

The jury, in response to issues submitted, found that the plaintiff had been "unlawfully arrested and falsely imprisoned" by the defendants Elaine Tucker and the Boysell Company and awarded compensatory damages in the sum of $116.

Judgment for plaintiff, from which the defendants appeal, assigning errors.

S. B. Dolley and P. W. Garland, both of Gastonia, for appellants.

A. E. Woltz and A. C. Jones, both of Gastonia, for appellee.

STACY, Chief Justice (after stating the case).

Two questions are presented by the appeal of the corporate defendant.

1. Was Elaine Tucker acting within the course of her employment or the scope of her authority as an employee of the defendant company in searching the plaintiff? The answer is, "No." Lamm v. Charles Stores Co., 201 N.C. 134, 159 S.E. 444, 77 A.L.R. 923; Daniel v. R. Co., 136 N.C. 517, 48 S.E. 816, 67 L.R.A. 455, 1 Ann.Cas. 718.

2. Was Miss Tucker specifically authorized to make the search in question? The answer is, "No."

We had occasion to examine anew the meaning of the expression "course of employment," or "scope of authority," as applied to varient fact situations, in the recent cases of Robertson v. Power Co., 204 N.C. 359, 168 S.E. 415, Lamm v. Charles Stores, supra, Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446, Martin v. Bus Line, 197 N.C. 720, 150 S.E. 501, Grier v. Grier, 192 N.C. 760, 135 S.E. 852, Gallop v. Clark, 188 N.C. 186, 124 S.E. 145. An exhaustive discussion of the subject appears in Stewart v. Lbr. Co., 146 N.C. 47, 59 S.E. 545. See, also, Sawyer v. R. Co., 142 N.C. 1, 54 S.E. 793, 115 Am.St.Rep. 716, 9 Ann.Cas. 440.

"A servant is acting in the course of his employment, when he is engaged in that which he was employed to do, and is at the time about his master's business. He is not acting in the course of his employment, if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interruption of the course of employment as to suspend the master's responsibility; but, if there is a total departure from the course of the master's business, the master is no longer answerable for the servant's conduct." Tiffany on Agency, p. 270.

It is elementary that the master is responsible for the tort of his servant which results in injury to another when the servant is acting by authority or within the scope of his employment and about the master's business. Roberts v. R. Co., 143 N.C. 176, 55 S.E. 509, 8 L.R.A. (N.S.) 798, 10 Ann.Cas. 375. Thus, where a servant, acting with authority or within the scope of his employment, wrongfully procures the arrest of a person, the master is liable in damages for such arrest and imprisonment. The position finds support in the following cases: Brockwell v. Tel. & Cable Co., 205 N.C. 474, 171 S.E. 784; Kelly v. Shoe Stores Co., 190 N.C. 406, 130 S.E. 32; Riley v. Stone, 174 N.C. 588, 94 S.E. 434; Bucken v. R. Co., 157 N.C. 443, 73 S.E. 137; Berry v. R. Co., 155 N.C. 287, 71 S.E. 322; Jackson v. Tel. & Teleg. Co., 139 N.C. 347, 51 S.E. 1015, 70 L.R.A. 738; Lovick v. R. Co., 129 N.C. 427, 40 S.E. 191; Hussey v. R. Co., 98 N.C. 34, 3 S.E. 923, 2 Am.St.Rep. 312; Sawyer v. Jarvis, 35 N.C. 179; Annotation, 35 A.L.R. 647; 25 C.J. 500.

On the other hand, it is equally well established that the master is not liable if the tort of the servant which caused the injury occurred while the servant was engaged in some private matter of his own, or outside the legitimate scope of his employment, and without specific authority from the master. Bucken v. R. Co., supra. As illustrative of this position, the following cases are apposite: Ellis v. Trust Co., 209 N.C. 247, 183 S.E. 368; Lamm v. Charles Stores Co., supra; Butler v. Mfg. Co., 182 N.C. 547, 109 S.E. 559; Powell v. Fiber Co., 150 N.C. 12, 63 S.E. 159; West v. Grocery Co., 138 N.C. 166, 50 S.E. 565, 566; Daniel v. R. Co., supra; Moore v. Cohen, 128 N.C. 345, 38 S.E. 919.

Coming, then, to the record before us, it is a rule of universal acceptance that extra-judicial declarations of an alleged agent are inadmissible to establish either the fact of agency or its nature and extent, such statements being regarded as hearsay and offered for the purpose of proving the truth of the factual matter therein asserted. State v. Lassiter, 191 N.C. 210, 131 S.E. 577; Fay & Egan Co. v. Crowell, 184 N.C. 415, 114 S.E. 529; Adams v. Foy & Shemwell, 176 N.C. 695, 97 S.E. 210; Jackson v. Tel. & Teleg. Co., supra; West v. Grocery Co., supra; Daniel v. R. Co., supra; Summerrow v. Baruch, 128 N.C. 202, 38 S.E. 861; Taylor v. Hunt, 118 N.C. 168, 24 S.E. 359; Gilbert v. James, 86 N.C. 244, 245; Annotation, 80 A.L.R. 604; 2 Am. Jur. 352. "That an agency must be proven aliunde the declarations of the alleged agent is elementary law. Grandy v. Ferebee, 68 N.C. [356] 362; Taylor v. Hunt, 118 N.C. [168] 173, 24 S.E. 359. And this is true both as to the establishment of the agency, and the nature and extent of the authority." Clark, C.J., in West v. Grocery Co., supra. Hence, the testimony of the plaintiff, quoting Miss Tucker as saying "she had talked with Mrs. Fuller over the 'phone and Mrs. Fuller had given her instructions to fasten the doors and search every one," was inadmissible as against the Boysell Company and should have been excluded as to it. It will be disregarded in considering the appeal of the corporate defendant. Mason v. Texas Co., 206 N.C. 805, 175 S.E. 291.

Conversely, proof of agency, as well as of its nature and extent, may be made by the direct testimony of the alleged agent. Therefore, the testimony of Miss Tucker was competent. Jones v. Light Co., 206 N.C. 862, 175 S.E. 167; Allen v. R. & Lumber Co., 171 N.C. 339, 88 S.E. 492; Sutton v. Lyons, 156 N.C. 3, 72 S.E. 4; State v. Yellowday, 152 N.C. 793, 67 S.E. 480; Hill v. Bean, 150 N.C. 436, 64 S.E. 212; New Home Sewing Machine Co. v. Seago, 128 N.C. 158, 38 S.E. 805; 2 Am.Jur. 353.

Viewed in the light of the above principles, it appears that the record is barren of any authorization or ratification on the part of the Boysell Company...