S. H. Kress & Co. v. Powell

• Decision Date: 25 April 1938
• Citation: S. H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (Fla. 1938)
• Parties: S. H. KRESS & CO. v. POWELL.
• Court: Florida Supreme Court

180 So. 757

132 Fla. 471

S. H. KRESS & CO. v. POWELL.

Florida Supreme Court, Division B.

April 25, 1938

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Action at law by Dorothy Powell, a minor, by her next friend, Mary Powell, against S. H. Kress & Co. for false imprisonment and malicious prosecution. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

COUNSEL

Watson & Pasco & Brown, of Pensacola, for plaintiff in error.

Coe &amp McLane, of Pensacola, for defendant in error.

OPINION

BROWN Justice.

Dorothy Powell, a minor, by her next friend, Mary Powell, brought an action at law against S. H. Kress & Co. to recover for false imprisonment and malicious prosecution. The declaration consisted of two counts. Demurrer to the declaration was overruled. Pleas were then filed, and the court sustained a demurrer to the third, fifth, and seventh pleas to the first count, and the third, fifth, seventh, eighth, ninth, and eleventh pleas to the second count of the declaration. Trial was had, and the jury found for the plaintiff and assessed her damages at $650. From the judgment entered upon that verdict, the defendant took this writ of error.

The first count of the declaration reads:

'The plaintiff, Dorothy Powell, a minor, by her next friend Mary Powell, by her attorneys, sues the defendant, S. H. Kress & Company, a Corporation, for that heretofore, to-wit, on and prior to the 24th day of December, A.D.1934, the defendant was engaged in the operation of a retail chain store in the City of Pensacola, Escambia County, Florida, and therein employed as manager one Faircloth, whose duty it was to manage and conduct the business and to guard its interests against theft, pilferage, passing of spurious coin and other misdemeanors liable to result in monetary loss to his employers, and on the said date, the plaintiff, a minor female of the age of seventeen (17) years, entered said store as a customer to purchase goods and tendered in payment thereof a five dollar bill, lawful money of the United States, but the said Faircloth, acting in his capacity as manager aforesaid, inspected the said five dollar bill and falsely declared the same to be counterfeit, and then and there caused the plaintiff to be detained in said store, gave her into the custody of a policeman and caused her to be falsely imprisoned in the police station of the City of Pensacola, from which imprisonment she was duly discharged upon subsequent inspection of the said five dollar bill by the proper officers of said city, it being apparent that the same was genuine. And the detention and delivery of the plaintiff to said policeman occurred in the presence of a large number of persons in the store of the defendant during the busy hours of Christmas eve, and plaintiff was embarrassed, humiliated and greatly damaged thereby and by the imprisonment consequent thereon; for all of which she sues and claims one thousand five hundred ($1,500.00) dollars damages.'

It is contended that the demurrer to the declaration should have been sustained, because even though it be admitted that Faircloth, the manager of the Kress store in Pensacola, had the duty of protecting the interests of the Kress Company from theft, pilferage, and the passage of spurious coin, yet such duty did not carry with it implied authority to do the alleged acts complained of so as to bind the defendant; that the declaration does not allege any express authority to do those acts; and there is no allegation of ratification by the defendant of them.

Each count alleges that Faircloth had the express duty 'to manage and conduct the said business, and to guard its interests against theft, pilferage, passing of spurious coin and other misdemeanors liable to result in monetary loss to his employers.' The first count alleges that Faircloth 'then and there caused plaintiff to be detained in said store, gave her in to the custody of the policeman and caused her to be falsely imprisoned in the police station in the City of Pensacola.' The second count alleges that Faircloth, acting as defendant's agent, 'commenced a criminal proceeding for the passage of counterfeit money against the plaintiff by then and there summoning a policeman and delivering the plaintiff to his custody and informing the said policeman that the said plaintiff had attempted to pass a counterfeit five dollar bill and by causing the said policeman to take the said plaintiff into his custody upon the said charge and conduct her to the police station of the City of Pensacola, which said prosecution was terminated in favor of this plaintiff upon the inspection of the five dollar bill, by the proper officers of the City of Pensacola, who determined the same to be genuine.'

There have grown up in this country large businesses, which usually have their principal offices in some large city with numerous branches or units of that business in many other states in the Union. The principal officers of the corporation are to be found only at the home office of the corporation. In each unit or branch of the business is placed in authority one who is generally designated as the 'manager' of the local unit, and who usually has the authority to select and to discharge his employees, to place orders for merchandise will the parent organization, and in some businesses to purchase merchandise from other corporations. The 'manager' is responsible in a general way for the prosperity and welfare of the local unit of that particular business. He is not to be classed with a mere clerk or employee; he is a vice principal. To permit a corporation of this type to escape liability for the acts of its 'manager' on the ground that he is not one of the principal officers of the corporation and that he must have actual express authority to do the particular thing in question would be going entirely too far afield from the realities, because, for all practical purposes, the 'manager' is the head of the corporation so far as the local unit of the business is concerned, and wrongful acts of the 'manager' which are done in behalf of the corporation's interests there, if they cause injury or damage to another, will make the corporation liable. Hotel Tutwiler Operating Co. v. Evans, 208 Ala. 252, 94 So. 120; also 35 A.L.R. 695 et seq., and 77 A.L.R. 927, 936, where cases pro and con are cited.

'The term 'manager,' applied to an officer or representative of a corporation, implies the idea that the management of the affairs of the company has been committed to him with respect to the property and business under his charge. Consequently his acts in and about the corporation's business, so committed to him, is within the scope of his authority. 5 Words and Phrases, First Series, p. 4319; Sullivan v. Evans-Morris-Whitney Co., 54 Utah 293, 180 P. 435. The designation 'manager' implies general power, and permits a reasonable inference that he was invested with the general conduct and control of the defendants' business * * * and his acts are, when committed in the line of his duty and in the scope of his employment, those of the company.' Kelly v. Newark Shoe Co., 190 N.C. 406, 130 S.E. 32, 34, citing numerous authorities.

The acts alleged in the first count to have been done by Faircloth, the 'manager' of the Kress store in Pensacola, were impliedly authorized by the defendant, if done in pursuance of any of the express duties alleged. There is a very close relation between the duty of protecting the interests of the defendant against the passage of spurious coin and other misdemeanors liable to result in monetary loss to the company, and the alleged act of the 'manager' in causing the detention or false imprisonment of the plaintiff because of an erroneous belief that a five-dollar bill she attempted to pass in the Kress store was counterfeit.

The alleged acts of the 'manager' in causing plaintiff to be taken to the police station was not necessarily done solely for the purpose of vindicating public justice, which is generally not actionable; Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 217; but may also have been done to prevent the plaintiff from later passing or attempting to pass the same five-dollar bill in the defendant's store in exchange for merchandise, which the 'manager' may have believed would result in financial loss to his company, as well as to prevent others from doing similar acts. See United Cigar Stores Co. v. Young, 36 App.D.C. 390; Hostettler v. Carter, 73 Okl. 125, 175 P. 244. Whether the allegations of the first count were proven was, under the evidence adduced, and such reasonable inferences as might be drawn therefrom, a question for the jury.

The general principle for which plaintiff in error contends, as applied to mere servants, or clerks, has been recognized by this court in the case of Winn & Lovett Grocery Co. v. Archer, supra, wherein this court, speaking through Mr. Justice Davis, said:

'There is a marked distinction between a false imprisonment or arrest caused by an agent for the purpose of protecting property, or recovering it back, and an arrest or imprisonment caused for the purpose of punishing an offender for an act already done. Ordinarily, there is no implied authority in a servant having the custody of property, to take such steps as he thinks fit to punish a person who he erroneously supposes has committed a crime against the property, and the trend of decision is against holding the master liable when the arrest has been made after the supposed crime has been committed, and not for the protection of his property or interests. In such cases the agent is presumed to have acted on his own account, for the vindication of justice, since his agency relates solely to...