People ex rel. Price v. Sheffield Farms-Slawson-Decker Co.

The defendant maintains at 529 West Twenty-eighth street a station from which milk is distributed to its drivers for delivery to customers on various wagon routes. At six-thirty a. m., on the morning of February, 26, 1917, one Price, an inspector connected with the State Industrial Commission, found a thirteen-year-old boy carrying a wicker basket containing several quart bottles of milk into premises 306 West Forty-first street. The milk belonged to the defendant, came from defendant’s establishment or station at 529 West Twenty-eighth street, and was being delivered from one of its wagons, driven by one Schmidt, who had been in the employment of the defendant for several years. Schmidt, without the actual knowledge of the defendant, had personally employed the boy to help him, and the boy had been working with him for six months. Schmidt paid the boy two dollars and fifty cents a week out of his own wages, which were sixteen dollars a week. Schmidt claimed when questioned by the inspector, and on the trial, that he employed the boy h> watch the wagon, it appearing that thefts of milk bottles were frequently made from wagons left in the street by drivers who had to go- into houses to deliver milk. On the trial it was shown, however, 'that the drivers of wagons were not charged by the company for milk that was lost or stolen from the wagons except upon occasions when it appeared that the loss was one for which the driver was clearly at fault. Thus the employment of the boy to help deliver milk

The defendant claims that the judgment is unjustified in fact and law, on the ground that the defendant neither employed the boy nor permitted him to work in connection with its establishment. The defendant contends that while a corporation is liable for the acts of its officers, it is not liable criminally for the acts of mere employees which acts are forbidden by the company itself and done without its knowledge or consent.

The first and underlying question is, whether this offense is malum in se or malum prohibitum. It is distinctly held in People v. Taylor ( 192 N. Y. 398 , 23 N. Y. Crim. 23 ) that a violation of a similar section of the former Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 70, as amd. by Laws of 1903, chap. 184), relating to factories, which was a. police regulation intended for the protection of the-public health,, was not malum in see, but malum prohibitum. It was further held in People v. D’Antonio ( 150 App. Div. 109 , 111, 27 N. Y. Crim. 260 ), that in the case of an act malum prohibitum intent forms no part of the offense. (See, also, People v. West, 106 N. Y. 293 , 296, 6 N. Y. Crim. 382 ; People v. Werner, 174 id. 132, 133, 134; Commonwealth v. Mixer, 207 Mass. 141 , 142, 143; Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57 , 67-70.)

After discussing numerous authorities, the learned judge continued : “ But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so- is that persons shall not be there within the reach of temptation. This respondent did not beep his bar closed and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent,— it is immaterial which,— a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it.”

The statute under consideration is not of the type making the master liable for an act of his servant, where it is necessary

But even if the liability of the defendant in this case were based upon that of the master for the consequences of an act of his servant, a clear case was made out. It is no answer to the charge to say that the driver hired the boy in the furtherance of his own purposes. The driver was conducting no independent business of his own. The only business that was being done was the defendant’s business of delivering milk. When it is said that the employee must at the time complained of be acting within the scope of his employment and in the furtherance of his master’s business, that does not mean that the prohibited act must have been one calculated to further the master’s business. It merely means that the act must- be done by the employee in the course of and while furthering his master’s business. In the case at bar, as above pointed out, while the employment of the boy was primarily to serve the driver’s personal ends, it was not only done in the course of and while furthering the defendant’s business, but was an act calculated to benefit the defendant by minimizing its losses.

The proof shows that the defendant permitted the violation of the statute. “ Permit ” in such a case does not mean to consent to with knowledge; it is synonymous with suffering an act to be

It, therefore, appears that, whether the liability be 'based upon the absolute duty o-f the owner to prevent the employment of boys under the age in connection with the -owner's business, or upon the master's responsibility for the acts -of bis servant in the course of his employment in the master's business, which act was suffered or permitted by the negligence or indifference of the master, the judgment of conviction was right and should be affirmed.

Smith, J., concurred; Page, J., dissented.

The statute which defendant has been convicted of violating provides that “ Ho child under the age of fourteen years shall

A reference to the preceding section shows that the work which the boy Attilio was engaged in was one of the prohibited occupations. (Labor Law, § 161, as amd. by Laws of 1915, chap. 386.)

There are two things which the statute forbids; First, the employment of a boy under the prescribed age, and second, permitting such a boy to work.

The duty cast upon the proprietor of an establishment or business referred to in section 161 of the Labor Law is, therefore, two-fold. He may not employ or consent to the employment of a boy under fourteen years of age, nor must he permit such á boy to work.

The evidence shows clearly that the boy Attilio did work in connection with the defendant’s business in delivering milk, and the defense was based upon the claim that defendant did not employ him, but that defendant’s driver employed him in order to lighten his own work. Assuming, though not deciding, that this constituted a defense against the charge of “ employing,” I think that the evidence fully justified the conviction of defendant of violating the statute in “ permitting ” 'the boy “ to work.”

It was clearly shown that it was well known to defendant’s superior officers that it was quite customary for its drivers to employ boys to work as the Attilio boy was employed and it is equally clear that no effective steps were taken to prevent the practice, which even when discovered was invariably condoned. This was a direct encouragement to the drivers to persist in the practice, and I think justified the conviction of the "defendant of having violated the statute in permitting the boy to work.

Clarke, P. J., concurred.

The driver was employed by the defendant to deliver milk to its customers and he was paid by it for that service. He was not authorized by the defendant to employ any one either to assist him or to be with him on the wagon. He had no actual or implied power to hire any one on the defendant’s behalf. A rule of the company, copies of which were prominently posted in the company’s depot in such manner as constantly to be brought to the attention of the drivers, and also printed in their route books in red ink, provided: “ Drivers must not under any circumstances allow any person not in the employ of this company to assist them in any way or to ride on their wagon.” The driver Schmidt employed a boy under fourteen years of age to assist him in the work that he was employed to do', paying him from his own' pocket. There is no pretense, in this case, that the defendant had any knowledge of the employment of this boy, or acquiesced therein. In fact the evidence is to the contrary. The driver started each morning from the company’s depot at Twenty-eighth street and Tenth avenue, the boy joined him at Forty-first street and Tenth avenue, and assisted him for about an hour and a half. The driver, in response to questions asked by the Assistant Attorney-General, stated that the inspectors of the defendant had told him not to hire boys, but they had never found him with a boy in his wagon, nevertheless the defendant has been convicted of violation of section 162 of the Labor Law, which provides: “Ho child under the age of fourteen years shall be employed or permitted to work in or in connection with any mercantile or other business or establishment specified in the preceding section.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 162, as amd. by Laws of 1911, chap. 866.) This ' conviction is to be affirmed, on the grounds that knowledge and consent on the part of the person accused is not essential, because the act is malum prohibitum and not malum in se; that although the defendant did not employ the boy, it permitted his employ

Nor was there a violation of the duty cast upon the proprietor by the -statute. Liability for the performance of an act inhibited, -or the failure to perform an act required, can -only be predicated upon .responsibility for the act done or omitted, by the person himself, or by an agent or employee in his behalf, authorized or ratified.

Certainly the master's responsibility for the servant’s1 crimes is not more liberal than that imposed in1 a civil action for his torts. We have recently stated, in the latter1 case: “ The true

In People v. Hudson Valley Construction Co. ( 217 N. Y. 172 , 179) the court said: “ The court properly charged that the corporation could act only through its officers' and agents, and was amenable to the law for the acts of its officers and those of its employees of which it had knowledge.” The corporation in that case was held liable for larceny, by obtaining more money than was its- due, by false representation, exaggerating the actual cost of the work. And the court further said: “ The proof permitted the jury to find that the wrongful acts attributed to the employees and agents of the defendant were performed in its service so methodically and continuously as to indicate the sanction of the corporation.” The acts were performed in the service of 'and for the benefit of the corporation, and so methodically and continuously done that even if the acts were unauthorized, it was shown thereby that they were ratified by the corporation, for it must have had knowledge thereof. This case is not an authority for the proposition- that the corporation is liable to conviction for larceny if an employee steals for his own- use and benefit, without the knowledge, acquiescence or connivance of the corporation.

The excise cases cited by Mr. Justice Shearn (People v. D’Antonio, 150 App. Div. 109 , 27 N. Y. Crim. 260 ; People v. Roby, 52 Mich. 577 ) in the last analysis rest upon the doctrine of respondeat superior. The excise statutes impose certain- duties upon the licensee to do or refrain from doing certain acts, and those cases hold that the employer cannot escape liability for the failure to observe the statutory requirements by intrusting his business to others; for empowering them to conduct the business, or intrusting to them any detail thereof, he is responsible for their acts or failures; he having given them the power, is liable

In my opinion the majority of the court have failed to consider the fact that this driver was solely employed to deliver milk, collect for milk so delivered and account to the defendant. He was not authorized to employ any one. Employment of others in the defendant’s business was not within the actual or implied scope of his employment. To hold the defendant liable is unreasonably extending the rule of criminal responsibility for the acts of others; It is said that other drivers of the defendant ■ have employed boys and when discovered by inspectors of the defendant, and. reported, they were not disciplined by fine or discharge. The misdemeanor with which this defendant was •charged in the information was that it did willfully violate and omit to comply with section 162 of the Labor Law, in that it did employ and permit one Antonio Attilm, who is under fourteen years of age, to work in and in connection with a mercantile establishment of which it was proprietor. It is said while it may be that the evidence failed to establish employment by the defendant, that the fact that drivers other than Schmidt had employed boys, and the defendant had not disciplined them, might lead the drivers to assume that they had the right to employ them, and thus the defendant was chargeable with having permitted them to work. But Schmidt testified that he could not tell whether other drivers hired boys. Evidently he did not predicate his right to employ this boy on any such information. . In effect the defendant is being held liable, not for the employment of this boy, but for having known of other similar offenses.

In my opinion the law against the employment of children of the prohibited age or in the prohibited occupations should be stringently enforced. But I believe the end may be accomplished by prosecution of the guilty and not by overturning well-settled rules of law to hold one not within the letter of a pen-al statute to liability for the act of another who. is clearly within its purview.

In my opinion the judgment should be reversed.

Judgments affirmed.