United Cigar Stores Co. v. Young

36 App. D.C. 390, 1911 U.S. App. LEXIS 5587

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 6, 1911
• Docket: No. 2155
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

1. The motion for a directed verdict being general, it follows that if there were sufficient evidence in support of either of the two counts which were submitted to the jury to warrant such a submission, the refusal of this general motion was not error. In a case like the present, a general motion for a verdict by direction is necessarily based upon the premise that there has been a failure of proof as to each count of the declaration. The language of Mr. Chief Justice Alvey in Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410, is apposite: “Upon this evidence, the defendant moved the court to instruct the jury to return a verdict for the defendant, upon the ground that the plaintiff had failed to make out such case as entitled him to have the case submitted to the jury. This application was refused, and, we think, rightly so. The prayer was that the ease should be instructed out of court without any reference whatever to the different counts of the declaration. Whether there was evidence sufficient to support both counts of the declaration, or only one, or neither of them, the court had to determine as a preliminary question; but if there was evidence sufficient to be submitted to the consideration of the jury, in respect to either one of the counts of the declaration, a general prayer for verdict upon the whole declaration could not be granted.”

The cases relied upon by the defendant in this connection are either cases where the motion was made to strike out certain counts of the declaration on the ground of lack of evidence to sustain them, or cases where prejudicial error was committed by the trial court in its charge to the jury as to some particular count, the verdict being general. It is obvious that those cases are not in point.

We therefore proceed to inquire whether the plaintiff has made out a case for the jury upon either of the two counts under consideration.

As was said by Mr. Justice Van Orsdel in Pickford v. Hudson, 32 App. D. C. 480-486: “"Where a citizen acts in good faith in assisting the officers of the law to apprehend and bring to the bar of justice those guilty of crime, or against whom probable cause exists of the commission of crime, such action is to be commended, and not condemned.” It is equally essential, however, that some protection be afforded the citizen against ill-advised and unfounded prosecutions. Indeed, it frequently happens that the wrong and injury thus done are not measurable in dollars and cents. For this reason the law demands that “reasonable cause for prosecution of the defendant must exist before his arrest is justifiable” Davis v. United States, 16 App. D. C. 454; Kirk v. Garrett, 84 Md. 405, 35 Atl. 1089. This is settled law, the only difficulty being its application in a given case.

In the present case a felony had been committed. This point being conceded, the question is whether, when the alleged arrest took place, there was reasonable cause for the suspicion that the plaintiff had committed the crime. If there was, his arrest was justifiable. 'What was the evidence against him ? Tie had been employed by the defendant at various times, aggregating about two years. He had a key to the store, as did other clerks. He knew the combination of the safe, as did other clerks. He was in charge of the store preceding the burglary, but no significance can be attached to this fact, because it is conceded that the burglary did not occur until after the store had been closed for the night. In fact, it is not contended that the burglary occurred until a time subsequent to the hour at which plaintiff testified he reached home. When questioned concerning his movements after he closed the store for the night, ho stated in detail what he did; that he first went to a lunch room, and then walked towards home; that just before he reached home, he talked with two police officers. All this information was known, or easily might have been known, prior to plaintiff’s alleged arrest. But, it is insisted, the plaintiff was in the cellar of the store at 10 o’clock, contrary to the rules of the company. The safe was not in the cellar, but the water cooler was. It is difficult to perceive the connection between this incident and the burglary. Reduced to its last analysis, the only evidence tending in any degree to connect the plaintiff -with, this crime is the testimony of the police officers who made the initial investigation, to the effect that the plaintiff then said “that as near as he could say there had been abont $500 in the safe;” or, as stated by another officer, “he said that the box contained Saturday’s and Sunday’s sales, amounting to $500 or over.” Counsel' for the defendant contends that plaintiff could not have known how much money was in the safe unless he had counted it. We do not think the inference deduced from this testimony a reasonable one. The plaintiff, as previously stated, had been employed by the defendant a sufficient length of time to know approximately, at least, the amount of a day’s sales. He knew, as did other clerks in the store, that on Sunday nights the safe contained the receipts of two days’ sales. ' Conceding the recollection of the officers as to the time when the plaintiff made the statement attributed to him to he correct, we find nothing in this statement justifying a suspicion against the plaintiff. His conduct subsequent to the burglary was entirely consistent with the theory of innocence. He promptly gave the alarm, notified his superiors, and answered all questions directed to him. There was not a word of evidence tending to disprove his statements as to his movements on the night' of the burglary, and, as above stated, the only circumstance that differentiates the plaintiff from his associates in the store is the statement attributed to him as to the approximate amount of money in the safe at the time. In our minds there lingers no doubt as to the insufficiency of this evidence on the question of reasonable cause. Suspicion is one thing; reasonable cause for suspicion is frequently quite another thing. We rule, therefore, as matter of law, that reasonable ground for suspicion that plaintiff was guilty did not exist at the time of his alleged arrest.

It is further urged, however, that, aside from the question of reasonable cause for suspicion, there was no evidence- legally sufficient to warrant the finding that “any of the officers or agents of the defendant corporation were authorized by the company to have the arrest made which is complained of in plaintiff’s declaration.”

The rule as expressed in Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202-210, 16 L. ed. 73-76, is “that for acts done by the agents of a corporation either in contractu or in delicto in the course of its business and of their employment, the corporation is responsible as an individual is responsible under similar circumstances.”

The court in Washington. Gaslight Co. v. Lansden, 172 U. S. 534-544, 43 L. ed. 543-548, 19 Sup. Ct. Rep. 296, after approving the doctrine of the Quigley Case, said: “The result of the authorities is, as we think, that in order to hold a corporation liable for the torts of any of its agents, the act in question must be performed in the course and within the scope of the agent’s employment in the business of the principal. The corporation can be held responsible for acts which are not strictly within the corporate powers, but which were assumed to be performed for the corporation and by the corporate agents who were competent to employ the corporate powers actually exercised. There need be no written authority under seal, nor vote of the corporation constituting the agency or authorizing the act. But, in the absence of evidence of this nature, there must be evidence of some facts from which the authority of the agent to act upon or in relation to the subject-matter involved may be fairly and legitimately inferred by the court or jury,” citing cases. The court was careful to say that there need not be evidence of authority, express or implied, in order to render the company liable, but that “there must be some evidence from which an authority might be implied on the part of the manager to represent the company as within the general scope of his employment, in regard to the subject matter.” Tn the Lansden Case, which was an action for libel, it was sought to hold the gas company responsible for the act of its gas engineer, who “was appointed generally to take care of the works and do the best he could for the company,” in writing a letter containing libelous matter to the publisher of a periodical called “The Progressive Age,” in response to a letter from said publisher, addressed to the gas company, seeking information concerning the object of plaintiff’s alleged attack upon the gas company in the course of his testimony before a congressional committee. The court ruled that there was “nothing to show that any correspondence whatever, upon the subject in hand, was within the scope of the manager’s employment.” While the manager testified that.he was not acting in his capacity as general manager in conducting the correspondence in question, the court was again careful to state that the defendant would not have been bound by such testimony if there had been other evidence in the case “from which a contrary inference could properly be drawn, — evidence from which it could be inferred that the manager was acting within the scope of his employment as manager; in such a case it would be proper to refer the question of fact to the jury to ascertain whether the letters were written within the scope of his employment, notwithstanding his assertion that he wrote them in his personal capacity.”

In the present case it was in evidence that Steinecke was superintendent of sales of all the defendant’s stores east of Chicago, except New York city. It was admitted that his duties were not defined in writing; that it was his duty to see that the stores were properly stocked and cared for, “that the clerks conduct themselves properly, and that the stores are run according to the policy of the United Cigar Stores Company.” It was also admitted that he had authority to hire and discharge clerks. From this and other testimony it was evident that he was really a general or supervising manager for defendant. Mr. Bouvier testified that he (Bouvier) was inspector for the defendant in Washington; “that as said inspector his duties covered the general supervision of all the stores in Washington;” that he was a subordinate of the sales department, of which, as we have seen, Steinecke was general superintendent; that “he telegraphed to Mr. Steinecke, the superintendent, a report of the burglary on the day thereafter,” and that “upon the night of Mr. Steineclce’s arrival in Washington, the witness made a full oral report of the matter” to him. It was in evidence that one or more interviews were held with the detectives on the same evening, and that during those interviews it was determined that Young should be taken to police headquarters on the following morning. Having all this in mind, that Steinecke was the company’s principal representative here, that he was present during the interview at police headquarters, and, according to plaintiff’s testimony, endeavored to recover .for his company from the plaintiff the money that had been stolen, we think the court was justified in submitting to the jury the question whether the defendant, to use the language of the learned trial justice, “by the nature and scope of the affairs to be transacted in Washington which it had committed to its particular manager or employee, committed such an authority to operate in Washington on its behalf as carried with it the authority and right on behalf of the corporation to institute criminal proceedings against dishonest employees.”

From the testimony it may fairly be assumed that the defendant had a large number of retail salesmen in its employ. It is apparent, therefore, that it would be to the interest of the company to bring about the arrest and punishment of such employees as had betrayed their trust by the commission of a crime like the one of which Steinecke suspected the plaintiff to be guilty. It is likewise apparent that the recovery of the stolen money would benefit the defendant. Taking into consideration all the facts and surrounding circumstances, we think it may fairly be inferred that Steinecke’s acts were within the general scope of his employment.

The burglary of one of defendant’s stores was an unusual occurrence, demanding investigation and action of some sort. A telegram was sent immediately after the event to New York by the local manager. Whether that particular telegram was addressed to Steinecke or to some other official does not clearly appear, but it does appear that Steinecke was the only representative of the company to respond thereto. Everything he did after his arrival was done in the supposed interest of his principal; and in this connection it should be noted that the plaintiff’s discharge by Steinecke was because of Steinecke’s suspicion that plaintiff was guilty of burglarizing the store. We have held that the evidence did not warrant such a suspicion, and yet the defendant permitted this act of Steinecke to stand. To that extent, at least, it adopted and ratified what he had done. The acts complained of and those admittedly within Steinecke’s authority were so closely related that we think the jury were justified in charging both to the same source.

It follows from what we have said that the court was justified in submitting the case to the jury.

There was no specific exception to the action of the court in submitting to the jury the question of the responsibility of the defendant for the slander uttered by Steinecke, and no exception to the charge of the court in reference thereto; therefore, in view of our finding that defendant’s- motion for a directed verdict was not well taken, we do not deem it necessary to pass upon that question.

2. Was there error in the court’s charge as to what constitutes imprisonment in the eyes of the law? We think not. The identity of the detectives when they appeared at the store for the purpose of taking the plaintiff to police headquarters was known to him. It was for the jury to determine just what was said and done on that occasion, and just what took place when police headquarters were reached. If the plaintiff’s testimony was accepted by the jury, it clearly warranted the finding that he was justified in assuming that, unless he yielded to the demand of the detectives to accompany them, force would be used. The first statement attributed to the officers, “We want you;” the fact that Mr. Bouvier, the local manager, then took the plaintiff’s keys; the words of the officer, “Hurry up and get your hat and come on;” the officers’ refusal to permit him to telephone to his wife; the fact that a detective walked on either -side of the plaintiff to the street car, and remained on either side of him in the car; the inquiry when detective headquarters were reached, “Have you got him ?” the remark of Steinecke that, “We have brought you down here;” — all, taken together, justified the belief in the mind of the plaintiff that physical force would be brought to bear if he refused to accompany the officers or remain with them when headquarters were reached.

In Hebrew v. Pulis, 73 N. J. L. 621, 7 L.R.A.(N.S.) 580, 118 Am. St. Rep. 716, 64 Atl. 121, the court said: “The essential thing is the constraint of the person. This constraint may be caused by threats as well as by actual force, and the threats may be by conduct or by words. If the words or conduct are such as to induce a reasonable apprehension of force, and the means of coercion are at hands, a person may be as effectually restrained and deprived of liberty as by prison bars. Unless it is clear that there is no reasonable apprehension of force, it is a question for the jury whether the submission was a voluntary act, or brought about by fear that force would be used.” To the same effect are: Goodell v. Tower, 77 Vt. 61, 107 Am. St. Rep. 745, 58 Atl. 790; Gunderson v. Struebing, 125 Wis. 173, 104 N. W. 149; Brushaber v. Stegemann, 22 Mich. 266; Gold v. Campbell, — Tex. Civ. App. —, 117 S. W. 463.

3. In the third assignment of error it is contended that the question as to what constitutes reasonable ground for suspicion after a felony has been committed, the facts being determined, is one of law, for the court. It is unnecessary to consider this assignment, for we have ruled that, conceding the facts to have been as contended by the defendant, probable cause of suspicion did not exist. It, of course, follows that the defendant could not have been harmed by the submission of the question to the jury-

4. Did the court err in its charge to the jury respecting the publication of the slanderous words ?

The court correctly told the jury that publication is an essential element in an action for slander. The court’s charge on this point was a mere elaboration of the defendant’s fourth prayer, which the court granted. In that prayer the jury were told “that no action of slander can be maintained unless the alleged slanderous words are published, that is, communicated to some third person, and such words spoken in the presence of a third person must be shown to have been within his hearing.” Publication being an essential element of the action, the burden is upon the plaintiff to prove it by a fair preponderance of evidence.” If, however, a third person is shown to have been present when the slanderous words were spoken, it is for the jury to say whether such person did or did not hear them. Townshend, Slander & Libel, sec. 107; McGeever v. Kennedy, 19 Ky. L. Rep. 845, 42 S. W. 114; 25 Cyc. Law & Proc. p. 365.

Whát was the testimony before the jury as to publication ? Plaintiff testified that there were two men in the telephone room besides himself when Steinecke entered, and that they “remained in the room.” In cross-examination he said that he thought the two men were in the room, but that he was “too excited to look to see who was in the room;” but he had already testified that it was during Steinecke’s conversation that he “got very mad and excited.” Both Steinecke and Bobinson, the telephone operator, testified for the defendant, and neither was asked whether there was a fourth person present. Clearly it was for the jury to determine whether there was.

Taking the court’s charge on this subject as a whole, the jury must have understood that before they could return a verdict for the plaintiff they must find actual publication of the slander. Even the denial of the witness Bobinson that he heard the conversation is not conclusive in the circumstances existing when the conversation occurred. He admitted that he was within 6 or 8 feet of the parties, did not contend that he was busy at the time, remembered the occurrence, “that these two men were talking together in his room about this matter,” that is, about the burglary, and that they were talking in an ordinary conversational tone. Having all those facts in mind, and the further fact that the witness was testifying nearly three years after the event, it was for the jury to say whether his testimony was consistent 'with reason; in other words, whether his recollection was or was not correct.

The cases relied upon by the defendant upon this point are not inconsistent with this conclusion. In Sheffill v. Van Deusen, 13 Gray, 304, 74 Am. Dec. 632, the proof merely showed that the defamatory words were spoken “at the dwelling house of the defendant, and in that part thereof called the bakery, where bread and other articles were sold to customers.” There was no testimony that a third person was present. The court said: “It is quite immaterial in the present case that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by third persons ?”

In Sullivan v. Sullivan, 48 Ill. App. 435, the objectionable language was uttered in the presence of three young children, to whom it was meaningless. The court took the position that there was no difference between such a case and one where such words were uttered in a foreign language, in the presence of one who did not understand them.

The difference between those two cases and the present case is apparent. Accepting, however, for the purposes of this case, the denial of the witness Eobinson that he heard the defamatory words, we still have the uncontradicted testimony of the plaintiff to the effect that another person was in the room. Considering the size of the room, we think the plaintiff’s testimony as to the presence of the fourth party, if accepted by the jury, was prima facie evidence of publication. Considering the surrounding circumstances, the jury might well have concluded that the presence of Eobinson and a fourth person at the interview was not the result of accident; in other words, that had plaintiff made any admissions prejudicial to himself, he would have been confronted later by those witnesses. Indeed, it was admitted by Steinecke in his testimony that he suspected plaintiff to be guilty; and it is apparent from the evidence that the real purpose in taking the plaintiff to police headquarters was to obtain a confession from him.

5. This assignment relates to certain rulings upon the admission and rejection of evidence, the first being directed to the refusal of the court to strike out, as not responsive, an answer of the plaintiff.

In the cross-examination of the plaintiff, he was asked “whether or not other clerks had keys to the store,” and answered in the affirmative. lie was then asked how many, and who, and replied, “I know Madison and Dempsey had keys, and also the combination of the safe. I am not quite sure whether Mr. Bouvier had keys to that particular door or not.” No objection was interposed to this answer. He was then asked, “Did you have the combination of the safe?” and answered, “Yes, sir; and Mr. Zimmerle had the combination to the safe, and also about forty other clerks that had been discharged.” The-object of the question being to show opportunity on the part of the plaintiff, we agree with the learned trial justice that the answer was reasonably responsive. No effort was made to disprove plaintiff’s statement, and if it had been untrue, that could easily have been done. If it was true, a categorical answer would have conveyed an entirely erroneous impression to the jury.. Considerable latitude is and should be accorded the trial court in matters of this kind, that the interest of justice may be. subserved.

There were certain exceptions to the refusal of the court to permit the detectives to testify whether the plaintiff’s movements were restricted while he was at police headquarters. The court permitted full inquiry as to what actually took place. It was for the jury to say whether this constituted restraint.

6. The court’s refusal to grant certain prayers of the defendant is the subject of this assignment; but all save one of the points thus raised have already been covered.

In the defendant’s fifth prayer, which was refused, the court was asked to instruct the jury that if they should find that the plaintiff “voluntarily accompanied the officers to police headquarters,” he could not recover. While this request was general, and left out of view entirely the count in slander, the court in its charge, as previously set forth, fully covered the question.

Having considered all material contentions of the appellant, and having found that no error was committed at the trial, the judgment is affirmed, with costs. Affirmed.