Hamel v. Brooklyn & New York Ferry Co. — 25 N.Y. St. Rep. 153

Majority

p. 153

James E. Hamel, Resp’t, v. The Brooklyn and New York Ferry Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889 .)

Headnote

1. Master and servant—Liability for acts of employee.

In an action for damages for assault and battery and false imprisonment, the court charged that if the defendants’ employee, while acting within the scope of his duty, unjustifiably assaulted plaintiff, and assuming to act under the defendants’ authority, and as a part of the same transaction, caused plaintiff’s arrest, the defendants were liable. Held, no error.

2. Same.

Whether defendants authorized the arrest was immaterial.

Appeal from a judgment entered on a verdict, and from an order denying a motion for a new trial.

This action was brought to recover damages for an alleged assault and battery, false imprisonment and malicious prosecution.

It appeared from the testimony that on the evening of the 10th day of April, 1888, the plaintiff, in company with another person, entered the ferry house of the Brooklyn and New York Ferry Company, at the foot of Roosevelt ■street, New York, for the purpose of crossing to Brooklyn by that ferry; the plaintiff stopped to pay the fare while his companion went on, and the plaintiff followed and found him struggling to pass the gate leading from the passenger entrance to the bridge and boat. This gate runs in a groove and is in charge of a gate-keeper. It is opened on the arrival of a boat as soon as she is secured, for the purpose of affording entrance to those awaiting transportation. It is closed whenever a whistle announcing the departure of a boat is blown.

It appeared that the plaintiff and his companion had arrived late for the boat which was about to start, having already whistled, and as the latter hurried on ahead of the plaintiff, he saw the keeper (Keane) closing the gate and shouted to the plaintiff to come on. An altercation arose between plaintiff and the gateman, the plaintiff giving evidence tending to show the gateman was the aggressor, the gateman insisting that the plaintiff was. While so engaged plaintiff was arrested; whether at the instance of the gate-man, or by the officer of his own accord, was a disputed question. On the trial, which resulted in plaintiff’s discharge, the gateman appeared as the principal witness; defendants’ superintendent also testified.

The defendant’s counsel requested the court to charge—

First. “That it was established by the evidence, that the

p. 154

defendant did not authorize or direct, in any way, the arrest or prosecution of the plaintiff.”

Second. ‘ ‘ That there is no evidence in the case that the defendant authorized, directed or caused the arrest or prosecution of the plaintiff, as charged in the complaint in this action.”

Third. “The'jury are not at liberty to infer from the mere arrest and prosecution of the plaintiff, and the surrounding circumstances, that the defendant instructed or authorized such arrest or prosecution.”

The court charged: “If you find that the gateman assaulted the plaintiff, and as part of that transaction called in the police officer, assuming to act under his authority as an officer of the defendant, and had the plaintiff arrested, this defendant would be liable for the arrest, even though the gateman was the agressor in the assault.”

James & Thomas H. Troy, for app’lt; A. W. Gleason, for resp’t.

The testimony was conflicting, and the ques-_ tions of fact were properly submitted to the jury.

There is no such preponderance of evidence as to justify interfering with the verdict.

The exceptions to defendants’ requests to charge, cannot be sustained. The gateman was an employee of defendant, and it was correctly charged that if he assaulted the plaintiff, and, assuming to act under the authority of defendants and as a part of that transaction, called in a police officer and had plaintiff arrested, the defendants were liable.

Whether defendants authorized the arrest or prosecution was not important. If their employee, acting within the general scope of his duty, unjustifiably caused them, defendants must respond. There was evidence enough on that point to go to the jury. We think the court correctly laid down the law.

Judgment affirmed, with costs.

All concur.