Fortune v. Trainor — 47 N.Y. St. Rep. 58

Majority

p. 58

T. Thomas Fortune, Resp’t, v. James Trainor, App’lt.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

1., Juitv—Examination—Peejudice.

• In an action against a person who is a saloonkeeper it is not error io> exclude a.question to jurors as to whether they have any prejudice against a man who retails drinks by the glass, as this refers only to a prejudice against the business and such prejudice would not disqualify the juror.

2. Masteb and sebvant—Liability of masteb fob sebvant’s acts.

Where a servant while acting within the scope of his duty unjustifiably assaults a person and as part of the same transaction and claiming to act under his master’s authority causes his arrest, the master is liable for the false imprisonment as. well as the assault.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

Charles Strauss, for app’lt; T. McCants Stewart, for resp’t.

—The plaintiff at the circuit obtained a verdict in this action, the complaint in which contained two counts, one for assault and battery and the other for false imprisonment; both wrongs haying been perpetrated as was alleged by á servant of the defendant while acting within the scope of his_, duty as such servant. The answer put in issue thh> authority of the servant to act in the matters complained of for the defendant and also contained denials of the facts alleged as constituting the wrongs stated to have been committed. From the judgment entered on the verdict and from an order denying a motion for a new trial this appeal is taken.

The verdict of the jury, as the testimony was put before them and under the charge of the trial judge (to which no exception was taken by the defendant’s counsel), was fully justified. _ Errors-of law, however, are claimed to have been made by the_ judge in his rulings, and the first relates to the exclusion of a question asked by the defendant’s counsel of the jurors empanelled to .try the-cause and before the case was opened. It appeared that the-

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plaintiff is a colored man and the defendant the keeper of a liquor saloon, and the difficulty between the parties originated in the refusal of the defendant’s barkeeper" to furnish the plaintiff with beer on his applying for it. The plaintiff’s counsel asked the jurors several questions directed to an ascertainment of the condition of their minds as to race prejudice, which questions were properly not allowed to be put. Thereupon, the defendant’s counsel asked the jurors collectively: “Has any gentleman of the jury any prejudice against a man who conducted business in which he has a bar and over which he retails drinks by the glass ?” The judge on objection also overruled that question and the defendant claims he was entitled to an answer to it.

It is the right of every litigant in cases tried before a jury, to have a fair, impartial and unbiased panel, and to interrogate the jurors drawn to ascertain their fitness for service in respect thereto. Any appropriate question framed to elicit the condition of mind of the jurors respecting the parties or the general subject matter of the action may be addressed to the panel or its individual members. But where an answer one way or the other to a proposed question would not disqualify a juror, it is not error to disallow it. Here the question related only to the particular business in which the defendant happened to be engaged. The presumption is that in all other respects the jurors were competent and had no prejudice, and could render an impartial verdict, for the record discloses nothing further on the subject. It has been held in this court, fifth department, De Puy v. Quinn, 40 St. Rep., 837 , that a juror who declared “ he did not think much of the business of selling liquor, and was prejudiced against it,” was not disqualified, even in an action under the Civil Damage act, from sitting in a case in which the defendant was a liquor dealer, and it is very aptly said in the opinion of the court, “ had one of the parties been a lawyer, minister, or dealer in stocks, jurors could be found having a prejudice against their business, and yet in a litigation where one of them was a party, it would scarcely be claimed that a juror who entertained such prejudice was disqualified for that reason to sit in the case.” Here the prejudice referred to in the question, notwithstanding its form, was against the business, and we think no error was committed in sustaining the objection to it.

Another error assigned is that the court was wrong in refusing to dismiss the complaint as to both causes of action. The principal ground urged in that connection is that it was not proven that one Ennis, who instigáted and was charged with having committed the assault, was acting within his employment in doing so, and that at all events it was not shown he was authorized to cause the arrest to be made, or to prefer a complaint against the plaintiff at the police station, and that the defendant is especially not answerable for any wrong done growing out of the second cause of action, and it is argued in effect that inasmuch as the verdict was rendered upon a submission of both causes of action, and it is impossible to know how far the jury were influenced by the testimony respecting the second cause of action, the judgment should be reversed. The motion toVlismiss was made at the close of the

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plaintiff’s case, and was renewed on the whole testimony on both sides at the close of the proofs.

We think there was enough evidence to show that Ennis’ acts are binding on the defendant. He "was the manager of the business and it was for the jury to say whether he acted or not within the scope of his employment; at all events that question was left to the jury with instructions not excepted to by the defendant.. As matter of law, under the particular facts as they appeared in the plaintiff’s case, there can be no separation of liability from the-initiation of the wrongful acts by the alleged assault and ejection-of the plaintiff from the premises down to and including his arraignment and committal by the police authorities. t The torts, comprised in both causes of action were connected directly with each other. Had they been independent the defendant would not have been liable for the false imprisonment, but in a case very like that at bar, Hamel v. Brooklyn & N. Y. Ferry Co., 25 St. Rep., 153 ; aff’d, 125 N. Y., 707 ; 34 St. Rep., 1013 , it was held that in. an action for assault and battery and false imprisonment the court; properly ruled that if the plaintiff’s employee unjustifiably assaulted the plaintiff while acting within the scope of his duty and as part of the same transaction and assuming to act under defendants’ authority caused the plaintiff’s arrest the defendants were liable.

The evidence fairly presented the issues and they were sent to the jury .under very full, clear and satisfactory instructions, and the judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., and O'Brien, J., concur.