Fisher v. Westmoreland

57 So. 563, 101 Miss. 180

• Court: Mississippi Supreme Court
• Decided: October 15, 1911
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

The principal is liable for the act of his agent in instituting a criminal prosecution maliciously and without probable cause, if the institution of such prosecution was expressly authorized or subsequently ratified by the principal, or was within the scope of the agent’s employment. In the case at bar the act of Crigler in instituting the prosecution complained of was never ratified by appellant, and he had no express authority to institute such a prosecution, unless it is contained in the letter written to him by appellant on June 22, 1910, which the reporter will set out in full.

A mere inspection of this letter demonstrates that it contains no such authority.- A proposition looking to the sale of the mill to appellee, as an adjustment of the damage sustained by appellant by reason of tbe taking of the saw and tbe breaking of tbe. mandrel, was pending between appellant and appellee, and tbis letter advised Crigler, who was assisting appellant in tbis negotiation, on what terms appellant would sell tbe mill, and authorized bim, in event tbe terms of sale were not satisfactory to appellee, to institute a prosécution against tbe negro, wbo, at tbe request of appellee, bad taken tbe saw. Granting, therefore, that tbis letter authorized Crigler to sell tbe mill to appellee upon certain terms, authority to sell property does not include authority to prosecute for a theft. And, moreover, tbe letter, by reason of its express direction to prosecute tbe negro, excluded any authority to prosecute any other person. “Expressio unius est exclusio alterius.”

Unless, therefore, tbe institution of such prosecution comes within tbe general authority confered upon Crigler by reason of bis being in charge of tbe mill as caretaker, appellant is not liable therefor. As such caretaker Crigler was authorized to do any and all things necessary to enable him to take care of and preserve tbe property; but bis authority extended no further. If necessary to prevent a person from stealing tbe property, be was authorized to cause tbe arrest of such person, not in order to punish bim, but to prevent tbe theft. Tbe prosecution complained of was not instituted in order to prevent a theft of tbe property; for appellee’s act, whatever it amounted to, upon which tbe charge of theft was based, bad been committed some time before, and tbe prosecution could only have resulted in punishing bim therefor.

It follows, from tbe foregoing views, that Crigler’s act, in instituting tbe prosecution, was clearly without tbe scope of bis authority. Markely v. Snow, 207 Pa. 447, 56 Atl. 999, 64 L. R. A. 685; Daniel v. Railroad, Co., 136 N. C. 517, 48 S. E. 816, 67 L. R. A. 455, 1 Ann. case. 718. Reversed and remanded.