Kelly v. Newark Shoe Stores Co.

130 S.E. 2, 190 N.C. 406, 1925 N.C. LEXIS 89

• Court: Supreme Court of North Carolina
• Decided: November 4, 1925
• Status: Published

Opinion

Vaesee, J".

Tbe plaintiff, tbe salesman of tbe defendants’ "Wilmington Sboe Store, was employed first by Murpby, wbo was called botb auditor and manager, wbo travels around and gets each store into operating condition and installs tbe employees and then, evidently, performs tbe duties of auditor afterwards. Tbe defendant,' Eedford, was employed by.Murphy and given tbe title of “general manager” of tbe Wilmington store. Eedford was in charge of tbe Wilmington store and employed tbe help, after tbe business was started off by Murpby. When tbe plaintiff became dissatisfied and quit, be was hired again by Eedford and so was tbe cashier. There is ample evidence outside of tbe title of Eedford that be was in tbe general charge of defendants’ store.. He computed and bandied tbe commission accounts of each employee. As manager, or general manager, be was in general charge of tbe defendants’ Wilmington store; bad general supervision and control 'over this business in all respects. Tbe term “manager,” applied to an officer or representative of a corporation, implies tbe idea that tbe management of tbe affairs of tbe company has been committed to him with respect to tbe property and business under bis charge. Consequently, bis acts in and about tbe corporation’s, business, so committed to him, is within tbe scope of bis authority. 5 Words and Phrases, 4319; Sullivan v. Evans-Morris-Whitney Co., 54 Utah, 293. Tbe designation “manager” implies general power, and permits a reasonable inference that be was invested with tbe general conduct and control of tbe defendants’ business centered in and about their Wilmington store, and bis acts are,- when committed in tbe line of bis duty and in tbe scope of bis employment, those'of tbe company. Whipple v. Insurance Co., 222 N. Y., 39, 46; Sanders v. Marble Co., 25 Wash., 475; Taylor v. Granite State Provident Asso., 136 N. Y., 343; Stewart v. Union Mutual Life Ins. Co., 155 N. Y., 257; American Car & Foundry Co. v. Alexandria Water Co., 218 Pa. St., 542; Commonwealth v. Johnson, 144 Pa. St., 377; Ives v. Insurance Co., 78 Hun., 32. Tbe term “manager” implies tbe exercise of judgment and skill. Roberts v. State, 26 Fla., 360; Ure v. Ure, 185 Ill., 216; Youngworth v. Jewell, 15 Nev., 48; Watson v. Cleveland, 21 Conn., 541; Black’s Law Dictionary, 2 ed., 752; American Inv. Co., v. Cable Co., 60 S. E., 1037 (Ga.) ; State v. Hemenover, 188 Mo., 381.

Tbe term “general manager” may imply still greater authority, and, although limited to the branch store at Wilmington, it still may imply the authority to act in emergencies, or generally, as the principal officer of the corporation in reference to the ordinary business and purposes of the corporation in the conduct of such store. Mining Co. v. Refining Co., 16 Col., 118; Kansas City v. Cullinan, 65 Kansas, 68; Railway Co., v. McVay, 98 Ind., 391; Gas Light Co., v. Lansden, 172 U. S. 534; Camcho v. Engraving Co., 37 N. Y., Supp., 725.

The difficulty in this case arises, not in determining whether the evidence, viewed in its most favorable light for the plaintiff tends to establish slander and false imprisonment, and false arrest and malicious prosecution, but in determining whether these acts of Redford were such as to invoke the rule of respondeat superior. This doctrine is based on the maxim qui per odium facit per seipsum facere videtur. Whether this maxim applies, with resultant liability to the defendant Samuels & Company, depends upon whether Redford’s acts were done in the line of his duty, or within the scope of his employment. Sawyer v. Gilmers, 189 N. C., 7; Cotton v. Fisheries Products Co., 177 N. C., 57; S. v. Williams, 186 N. C., 627; Gallop v. Clark, 188 N. C., 186; Jackson v. Telegraph Co., 139 N. C., 348; Pierce v. R. R., 124 N. C., 93; Cook v. R. R., 128 N. C., 333. Liability does not flow from the employee’s intent to benefit or serve the master, but it does flow from the acts of the servant or employee in attempting to do what he was employed to do, that is, the acts complained of must have been done in the line of his duty, and within the scope of his employment. Butler v. Mfg. Co., 182 N. C., 547; Daniel v. R. R., 136 N. C., 517; Munick v. Durham, 181 N. C., 188; Clark v. Bland, 181 N. C., 112; Roberts v. R. R., 143 N. C., 176.

We conclude, therefore, that it was error on the part of the trial court in withdrawing this cause from the jury.

Plaintiff contends that he was maliciously prosecuted, falsely imprisoned and illegally assaulted and searched at Redford’s instance after he was carried from the defendants’ store under such circumstances as to impose liability on the defendant.

The indictment had in the Superior Court of New Hanover County is prima facie probable cause for the prosecution. Stanford v. Grocery Co., 143 N. C., 419.

There is not sufficient evidence in the record for this Court to determine whether, as to- the evidence transpiring after Redford and the plaintiff left the defendants’ store, comes within the rules announced in Minter v. Express Co., 153 N. C., 507; Daniel v. R. R., supra; Allen v. R. R., L. R., 6 Q. B., 65, or under the rules announced, with reference to past offenses, in Berry v. R. R., 155 N. C., 287; Minter v. Express Co., supra; Dover v. Mfg. Co., 157 N. C., 324-327; Cooper v. R. R., 165 N. C., 578, 582; Butler v. Mfg. Co., 185 N. C., 250, 252.

If it shall appear that such acts, after leaving the store, were within the scope of Bedford's employment and in his line of duty, or that such acts were authorized or ratified by the defendant, then the settled principles announced in Sawyer v. R. R., 142 N. C., 1, 8; Gallop v. Clark, supra; Jones v. R. R., 150 N. C., 473, 476; Marlowe v. Bland, 154 N. C., 140, 143, 145; Sawyer v. Gilmers, supra, would apply.

The defendant Samuels & Company obtains no exemption from liability for torts on account of its corporate capacity (Hussey v. R. R., 98 N. C., 34; 2 Am. State Reports, 312; Denver R. R. Co. v. Harris, 122 U. S., 597), but.it is liable for the acts of its servants and agents in the same degree as natural persons are liable for the acts of their servants and agents. Beach on Private Corporations, Par. 455; Goodspeed v. Bank, 22 Conn., 536; Wachsmuth v. Bank, 96 Mich., 426; Evansville & Terre Haute Ry. Co. v. McKee, 99 Ind., 519; Redditt v. Mfg. Co., 124 N. C., 100; Sawyer v. R. R., supra; Ange v. Woodmen, 173 N. C., 33, 35; Strickland v. Kress, 183 N. C., 534, 537. This latter case marks with distinctive clearness the line of demarcation in the scope of employment of a manager of a store.

Yiewing this case in its most favorable light for the plaintiff, we conclude that there is sufficient evidence to be submitted to the jury for them to determine whether, under proper instructions from the court, the arrest and search and imprisonment and prosecution which took place after the plaintiff left or was carried from defendants’ store, was a continuation of the same tort committed by Redford within the store. Berry v. R. R., supra; Jackson v. Telegraph Co., supra; Marlowe v. Bland, supra; Denver R. R. Co. v. Harris, supra.

Therefore, to the end that there may be a new trial in accordance with this opinion, the judgment of nonsuit is

Reversed.