Clark v. Starin — 14 N.Y. St. Rep. 558

Majority

p. 558

George W. Clark, App’lt, v. John H. Starin, Def't.

(Supreme Court, General Term, Second Department,

Filed February 13, 1888.)

Headnote

False imprisonment—Master and servant—What within scope of employment.

On the trial of an action for false imprisonment, it appeared that the defendant was the owner of Glen Island, a summer resort, and that the plaintiff was in his employ. That defendant employed the Pinkerton’s (a detective agency), to take charge and control of the island, so far as police regulations were concerned, and they employed men for that purpose, among others, the person who made the arrest. The plaintiff was suspected of larceny, and arrested without a warrant and detained for several hours by such police officer. The arrest was directed and approved by the defendant’s manager Held, that an action would lie against the defendant. That the act was within the scope of the employment of both the policeman and manager.

This is an appeal from a judgment of the jury in favor of the defendant, and against the plaintiff, under direction of the court, at a circuit of the above court, held at the court house, White Plains. Westchester county.

(Maries H. Noxon, for app’lt; A. J. Ditterihoefer, for resp’t.

The defendant is the owner of Glen Island, in Westchester county. He makes use of it as a place of resort of persons desiring recreation and amusement. The island is reached by a boat which is owned and operated by defendant, and also by other independant lines of steamers. The defendant’s son was the manager of the island for the defendant The defendant employed one Hines to be policeman on the island in this way. He agreed, with one Pinkerton to furnish all the police needed, and Pinkerton put on men and made Hines captain. The plaintiff was a ticket taker in defendant’s employment. The' defendant’s son and Hines arrested plaintiff for larceny. He was, after annoying delays and much apparent ill treatment discharged. The act was within the scope of the

p. 559

employment of both Mindert Starin, defendant’s son, and of Hines, the captain of the defendant’s voluntary police. It was in the masters sole interest that the arrest was made. JSTeither the defendant’s son or the officer had any separate or personal benefit to be promoted by the arrest. The police were there to make arrests in defendant’s interest. The arrest was without warrant, and the officer stated that it was left to him when it was on this (Glen) island. For such an arrest directed and approved of by the defendant’s manager, an action will lie against the master. Quinn v. Power 87 N. Y., 535 ; Rounds v. Delaware Lack. and Western R. R., 64 N. Y., 129 ; Cohen v. Dry Dock, etc. R. R. Co., 69 N. Y., 170 ; Hoffman v N. Y. Central, 75 N. Y., 605 .

The judgment should be reversed and a new trial granted, costs to abide event.

This is an action for false imprisonment, wherein a verdict was directed for the defendant.

The defendant is the owner of Glen Island, a summer resort for daily visitors, and the plaintiff was in his employ. It appears from the answer that the defendant employed the Pinkertons (a detective agency) to take charge and control of the island so far as the police regulations were concerned and they employed men for that purpose.

• It seems the plaintiff was suspected of having unlawfully •obtained some tickets, the property of the defendant, and he was accordingly arrested, without warrant, and detained for several hours by such police officers.

Ho justification is shown for such arrest; so far as the case shows, the plaintiff had been guilty of no offense, and it does not, in fact, appear that any Offense had been committed. It was, therefore, not a case authorizing an arrest without warrant.

The defendant, however, claims that he is not liable, because the arrest was not within the scope of the authority conferred by the defendant upon the parties making the arrest.

The question is, not whether the particular act was authorized, but whether the servant was engaged in his master’s business, and acting within the general scope of his authority.

The test is whether the act complained of is in the course of the employment or outside of it.

Here the Pinkertons had general authority to do all necessary police acts. The management of this business was confided to them, and if through lack of judgment or discretion, or even infirmity of temper, they went beyond the strict line of authority, the defendant must be held liable.

p. 560

Cohen v. Dry Dock, etc., R. R., 69 N. Y., 170 ; Shea v. Sixth Avenue R. R., 62 id., 180 .

' All who were'engaged in the arrest were principals, and one of the parties, Mindert Starin, who was prominent in the matter, was the general manager of the Island, under the defendant. We think it clear there was enough to go to-the jury upon the question whether the defendant was the-principal in the transaction.

The defendant also claims in his answer that the arrest-was made as peace officers of Westchester county, and not by virtue of any employment by defendant.

That may constitute a good defense when pressed; as the-case now stands, it may be fairly inferred that the parties who made the arrest were acting under the defendant.

The case of Mallach v. Ridley (6 N. Y. State Rep., 651), is not in point. That case lays down no new law, but simply holds that a master is not hable for an arrest made by a servant outside of the line of his duty, although the servant supposed' he was acting within the scope of his authority. We think the present case should have been, left to the jury to determine whether the arrest was within the authority conferred on the officers.

Judgment reversed, new trial granted. Costs to abide the event.