Hershey v. O'Neill

36 F. 168, 1888 U.S. App. LEXIS 2588

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: September 5, 1888
• Status: Published

Opinion

Coxe, J.,

(after stating the facts as above.') Being more than ever convinced, after are-examination of the evidence, that the verdict was right, and in accordance with the great preponderance of testimony, the court is not disposed to grant a new trial upon any ground which is merely technical and formal in character. Where the court can see that a proper result lias been reached, that the party has succeeded who ought to succeed, the endeavor should be to preserve the fruits of the trial.. Every doubt should be resolved in favor of affirmance; every exception not affecting the merits should be disregarded. Where a controversy has terminated in a correct ,and honest verdict, it is for the advantage of both parties that litigation should cease.

The question arising on the pleadings is this: The complaint alleges, in substance, that the defendant, by his agents, servants, and employes, arrested the plaintiff on a false charge, without right, authority, or reasonable canse. The answer denies that the defendant, or his agents, servants, or employes, falsely or maliciously, or without reasonable cause, did any of the acts alleged against him or them in said complaint. It is asserted by the plaintiff that here is an admission that the arrest was made by the defendant’s agents, and a denial only of the allegation that they acted maliciously and without probable cause. In other words, the defendant admits that his agents did the acts in question, when he denies that they did those acts maliciously. It is true that the answer contains a negative pregnant, that it is not an artistic piece of pleading, and that a motion to make it more definite and certain would, in all probability, have prevailed. There certainly is plausibility in the contention that the authority of the defendant’s servants to act as they did is admitted; and yet it is quite clear, taking the answer in its entirety, that it was not the intention of the pleader to place the defendant in this attitude. The plaintiff could hardly havé been misled by this denial. In a subsequent paragraph the answer sets out fully the facts as they were understood by the defendant. It alleges that one of his clerks, having reasonable cause to suspect the plaintiff of the commission of the crime of larceny, took the umbrella from her and caused her to be arrested. This was true. The defendant could not, truthfully, have denied it. The answer further alleges that the person who made the arrest was a police officer appointed pursuant to law. All this is inconsistent with the theory that the defendant admits that the plaintiff' was apprehended and arrested by his agents, acting under his authority. It is-not the spirit of modem jurisprudence to defeat a party, or deprive him of a substantial right, by a nice and- overstrained construction of his pleading. On the contrary, where, as in this case, the objection is not made until the trial, it should not be heeded, unless the other party has been misled to his injury; and, in all cases where it can properly be done, ample opportunity for amendment should be permitted. ' It is thought, therefore, that the answer, taken as a whole, is susceptible of a more liberal interpretation than that placed upon it by the plaintiff, and that within the authority of Wall v. Water Co., 18 N. Y. 118, it may be held to put all the corresponding allegations of the complaint in issue. But, if this were otherwise, no reason is suggested why an amendment may not, even now, be made. Railroad Co. v. McHenry, 17 Fed. Rep. 414, and cases cited.

There was no mistake in instructing the jury that they should find for the defendant if they believed his witnesses. To say that the acts of Saunders, as related by him, amounted to an arrest, is surely to view them in-a light superlatively harsh. No force was used. There were no threats. The plaintiff returned voluntarily; she was not compelled to do so by anything which Saunders did. The sidewalk on Sixth avenue was not a proper place to transact btisiness, and his request, or demand even, that she should return, was not inconsistent with a satisfactory arrangement of the difficulty inside the store. That the plaintiff so understood it is quite evident, for she testifies: “I supposed that he was going to take me to- the proprietor of the store, and I turned around and walked with him, back.” And again, upon the defendant’s testimony, a larceny had actually been committed justifying an arrest by a private individual. Burns v. Erben, 40 N. Y. 463.

The third and last assignment of error raises an interesting and novel question: Was the court right in holding that the defendant is not responsible for the acts of Kenney, because he was a police officer? Notwithstanding the able and ingenious argument of plaintiff’s counsel, it is thought that the ruling made at the trial should remain unchanged. Kenney, under the terms of the act, (Laws 1884, c. 180, § 269,) was subject to the orders of the superintendent of police; was required to obey the rules and regulations, general and special, of the police board; to conform to its discipline, and wear its dress or emblem. The act further provides that a patrolman so appointed shall be subject to removal by the board without cause assigned, and “shall possess all the powers and discharge all the duties of the police force applicable to regular patrolmen.” Kenney, therefore, possessed all the common-law and statutory powers of constables, except for the service of civil process. It was made his duty by law at all times of day and night to prevent crime, detect and arrest offenders, protect the rights of persons and property, and, with or without warrant, to arrest all persons guilty of violating the law. He was, it is true, appointed for duty in the defendant’s store, and was paid by the defendant. In all other respects, so far as this controversy is concerned, he was as much a member of the metropolitan force as any patrolman. It was the intent and purpose of the law to invest him with all the rights, powers, privileges, and immunities of a regular policeman. If this were not the object, if the status of the person so appointed remains unchanged, if the relations of master and servant still exist, it is not easy to see why the act was passed. The provision that the person particularly benefited shall pay the salary does not render nugatory the other provisions of the act, and deprive the policeman of the broad authority expressly delegated. Ho is not, in other words, the mere servant of the person who pays him. It is understood that this construction has been placed upon the law by the state courts, and it would seem to be more in accordance with reason and common sense than the opposing theory.

There can be no force in the contention that the defendant is liable for a false imprisonment because the arrest by Kenney was instigated by Saunders. To hold a merchant liable for the acts of a police officer because one of the merchant’s clerks, with no authority from him, in his absence, and without his knowledge, gives information to the officer which induces him to arrest a person who, apparently, has committed a crime in the informant’s presence, would be going far beyond any reported case. Teal v. Fissel, 28 Fed. Rep. 351; Von Latham v. Libby, 38 Barb. 339; Brown v. Chadscy, 39 Barb. 253.

The cause was presented as fairly for the plaintiff as she had a right to expect. Had the trial taken place in a state tribunal, it is altogether probable that it would have been terminated by the court, and not the jury. Mali v. Lord, 39 N. Y. 381; Burns v. Erben, 40 N. Y. 463.

The plaintiff was a total stranger to all in the store. Necessarily she was judged, not by what she was, but by what she seemed to be. It was a most natural inference from her conduct that she intended to take the defendant’s property. The testimony is overwhelming that she took the umbrella without asking permission, and with no word of explanation carried it 40 feet through the store, and was actually walking with it down Sixth avenue when she was requested to return. It would seem that a clerk who hesitated to protect his employer’s property in such circumstances would be most derelict in his duty. The plaintiff’s conduct, to state it mildly, was exceedingly suspicious, and for the unfortunate occurrences which' followed she has herself alone to thank. It would seem that no impartial person can read this record and reach a conclusion different from that reached by the jury. The motion is denied.