Parrish v. Boysell Manufacturing Co.

188 S.E. 817, 211 N.C. 7, 1936 N.C. LEXIS 389

• Court: Supreme Court of North Carolina
• Decided: December 16, 1936
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: Two questions are presented by the appeal of the corporate defendant.

1. "Was Elaine Tucker acting within the course of her employment or the scope of her authority as an employee of the defendant company in searching the plaintiff? The answer is, “No.” Lamm v. Charles Stores Co., 201 N. C., 134, 159 S. E., 444; Daniel v. R. R., 136 N. C., 517, 48 S. E., 816.

2. "Was Miss Tucker specifically authorized -to make the search in question? The answer is, “No.”

We had occasion to examine anew the meaning of the expression “course of employment,” or “scope of authority,” as applied to variant fact situations, in the recent cases of Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415; Lamm v. Charles Stores Co., supra; Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446; Martin v. Bus Co., 197 N. C., 720, 150 S. E., 501; Grier v. Grier, 192 N. C., 760, 135 S. E., 852; Gallop v. Clark, 188 N. C., 186, 124 S. E., 145. An exhaustive discussion of the subject appears in Stewart v. Lbr. Co., 146 N. C., 47, 59 S. E., 545. See, also, Sawyer v. R. R., 142 N. C., 1, 54 S. E., 793.

“A servant is acting in the course of his employment when he is engaged in that which he was employed to do, and is at the time about his master’s business. He is not acting in the course of his employment if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interpretation of the course of employment as to suspend the master’s responsibility; but, if there is a total departure from the course of the master’s business, the master is no longer answerable for the servant’s conduct.” Tiffany on Agency, p. 270.

It is elementary that the master is responsible for the tort of his servant which results in injury to another when the servant is acting by authority or within the scope of his employment and about the master’s business. Roberts v. R. R., 143 N. C., 176, 55 S. E., 509. Thus, where a servant, acting with authority or within the scope of his employment, wrongfully procures the arrest of a person, the master is liable in damages for such arrest and imprisonment. The position finds support in the following cases: Brockwell v. Tel. Co., 205 N. C., 474, 171 S. E., 784; Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32; Riley v. Stone, 174 N. C., 588, 94 S. E., 434; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137; Berry v. R. R., 155 N. C., 287, 71 S. E., 322; Jackson v. Tel. Co., 139 N. C., 347, 51 S. E., 1015; Lovick v. R. R., 129 N. C., 427, 40 S. E., 191; Hussey v. R. R., 98 N. C., 34, 3 S. E., 923; Sawyer v. Jarvis, 35 N. C., 179; Annotation, 35 A. L. R., 647; 25 C. J., 500.

On the other hand, it is equally well established that the master is not liable if the tort of the servant which caused the injury occurred while the servant was engaged in some private matter of his own, or outside the legitimate scope of his employment, and without specific authority from the master. Bucken v. R. R., supra. As illustrative of this position, the following cases are apposite: Ellis v. Trust Co., 209 N. C., 247, 183 S. E., 368; Lamm v. Charles Stores Co., supra; Butler v. Mfg. Co., 182 N. C., 547, 109 S. E., 559; Powell v. Fiber Co., 150 N. C., 12, 63 S. E., 159; West v. Groc. Co., 138 N. C., 166, 50 S. E., 565; Daniel v. R. R., supra; Moore v. Cohen, 128 N. C., 345, 38 S. E., 919.

Coming, then, to the record before us, it is a rule of universal acceptance that extrajudicial declarations of an alleged agent are inadmissible to establish either the fact of agency or its nature and extent, such statements being regarded as hearsay and offered for the purpose of proving the truth of the factual matter therein asserted. S. v. Lassiter, 191 N. C., 210, 131 S. E., 577; Fay v. Crowell, 184 N. C., 415, 114 S. E., 529; Adams v. Foy, 176 N. C., 695, 97 S. E., 210; Jackson v. Tel. Co., supra; West v. Grocery Co., supra; Daniel v. R. R., supra; Summerrow v. Baruch, 128 N. C., 202, 38 S. E., 861; Taylor v. Hunt, 118 N. C., 168, 24 S. E., 359; Gilbert v. James, 86 N. C., 245; Annotation, 80 A. L. R., 604; 2 Am. Jur., 352. “That an agency must be proven aliunde the declarations of the alleged agent is elementary law (Grandy v. Ferebee, 68 N. C., 362; Taylor v. Hunt, 118 N. C., 168), and this is true both as to the establishment of the agency and the nature and extent of the authority” — Clark, C. J., in West v. Grocery Co., supra. Hence, the testimony of the plaintiff, quoting Miss Tucker as saying “she had talked with Mrs. Fuller over the phone and Mrs. Fuller had given her instructions to fasten the doors and search everyone” was inadmissible as .against the Boysell Company, and should have been excluded as to it. It will be disregarded in considering the appeal of the corporate defendant. Mason v. Texas Co., 206 N. C., 805, 175 S. E., 291.

Conversely, proof of agency, as well as of its nature and extent, may be made by the direct testimony of the alleged agent. Therefore, the testimony of Miss Tucker was competent. Jones v. Light Co., 206 N. C., 862, 175 S. E., 167; Allen v. R. R., 171 N. C., 339, 88 S. E., 492; Sutton v. Lyons, 156 N. C., 3, 72 S. E., 4; S. v. Yellowday, 152 N. C., 793, 67 S. E., 480; Hill v. Bean, 150 N. C., 436, 64 S. E., 212; Machine Co. v. Seago, 128 N. C., 158, 38 S. E., 805; 2 Am. Jur., 353.

Viewed in. the light of the above principles, it appears that the record is barren of any authorization or ratification on the part of the Boysell Company of plantiff’s alleged arrest and imprisonment. Dickerson v. Refining Co., supra. It is the holding in Md. Cas. Co. v. Woolley, 36 Fed. (2d), 460, that “liability of the principal for act of the agent in causing false arrest or imprisonment is dependent on whether principal previously authorized or subsequently ratified act, and whether act was within scope of agent’s employment.” All the competent evidence tends to show that Miss Tucker was without authority from her employer to make the search in question; also that she went beyond the course of her employment and for the moment departed from her master’s business. Grier v. Grier, supra. It was no part of her duty to recover the lost wages of the two employees, even if it had been the money of her employer, which it was not. The money belonged to the two girls who had lost it, and not to the defendants. It would not have profited them had the money been found. Its loss was not their loss. “ ‘In the absence of express orders to do an act, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment.’ Wood, Master and Servant, 546. For illustration, a clerk to sell goods suspects that goods have been stolen, and causes an arrest to be made. The master is not liable for the imprisonment or for the arrest, because the arrest was an act which the clerk had no authority to do for the master, express or implied” — Faircloth, C. J., in Willis v. R. R., 120 N. C., 508, 26 S. E., 784.

It follows, therefore, from what is said above, the demurrer to the evidence interposed by the corporate defendant should have been allowed.

The case against Elaine Tucker stands on a different footing. She assumed responsibility for the search, and while the plaintiff, on cross-examination, very nearly testifies to a voluntary search, which would have rendered it harmless on the principle of volenti non -fit injuria, Riley v. Stone, supra, still, taken as a whole, the evidence on the point is sufficiently equivocal to require its submission to the jury. It is unfortunate, perhaps, that the corporate defendant was allowed to remain in' the case, nevertheless, as presently presented, this cannot avail the individual defendant. As to her, the demurrer to the evidence was properly overruled. Riley v. Stone, supra.

“False imprisonment is the illegal restraint of the person of any one against his will” — Ashe, J., in S. v. Lunsford, 81 N. C., 528. It generally includes an assault and battery, and always, at least, a technical assault. S. v. Reavis, 113 N. C., 677, 18 S. E., 388. Involuntary restraint and its unlawfulness are the two essential elements of the offense. Riley v. Stone, supra; 25 C. J., 443; 11 R. C. L., 791. Where no force or violence is actually used, tbe submission must be to a reasonably apprehended force. Powell v. Fiber Co., supra.

Tbe result, tben, is an affirmance in part and a reversal in part of tbe judgment below. Tbe costs of tbe appeal will be divided between tbe plaintiff and tbe individual defendant.

On appeal of tbe Boysell company, Eeversed.

On appeal of Elaine Tucker, No error.