Weinstein v. Singer Manufacturing Co.

121 A.D. 708, 106 N.Y.S. 517, 1907 N.Y. App. Div. LEXIS 1883

Opinion

Ingraham, J.:

■ The -defendant made a contract with the' plaintiff’s ■ husband whereby the defendant rented to plaintiff’s husband a sewing' machine, valued at sixty dollars, for which lie agreed to pay five dollars on the delivery of the machine, which was accepted as payment for the first week’s rent, and then at the rate' of one dollar per week, payable in advance, on each Monday' thereafter for forty-three weeks. It was further provided that .if default should be made in any. of the payments, or if plaintiff’s husband should sell or offer to sell, or to remove or attempt to remove, the machine from his residence without the consent of the defendant, he would return the machine to the defendant, and authorized the defendant or its agents to enter his premises, wherever said machine might be, and take and carry the same away, and waived notice of sale. This contract was made by one P. Burg, as salesman for the defendant, and he subsequently collected one dollar for a number of weeks.

The plaintiff’s husband testified that he called at the store of the defendant on'Eighth avenue, in the city of Mew York, on the Monday before the machine was taken away, and saw Burg, who referred him to the superintendent; that the latter said to him, “You owe some money,” to which the witness answered that he could not pay because he was out of work, whereupon the superintendent said, “If you don’t, pay that money, the balance of your due to-day, to-morrow you will your machine have taken away; ” that he would send Mr. Burg to take away the machine the next. day.

The plaintiff then testified that on the day after this interview Burg came to her house and demanded the money that was dué; that she told him she had no money, and asked him to call in the evening when she would get him some; that Burg went into the front room, and the witness' stood in the doorway and tried to stop him; that Burg then took hold of her by her right arm and gave her a push back; that Burg then told another man who was with him to hurry up and take the machine, and as they were taking it out she stood in the doorway.when they gave her a “ bunk with t,he'corner of the machine into the stomach;” that the two men, Burg and his assistant, were then carrying the machine out, and Burg got hold of her by the sleeve and threw her; that she was pregnant, and there resulted a miscarriage. Upon crbss-examina' tion plaintiff described the occurrence as follows: “ And then I stood firm, so that they could not take the machine out, and ,1 went and got hold of it, on the corner, so they wouldn’t take the machine out. When I-held the machine at the comer he pulled me away, Mr. Burg. That was not the right arm that went before. At that • time he pulled me away and the machine struck me in.tlio belly. Now I told you that is when he was trying to take out the machine.” ■.

Burg was then called as a witness for plaintiff, and' testified that-he was in the employ of the defendant, and leased this machine to the plaintiff’s husband; that he was at that time collecting and leas- ■ ing machines; that he went to the plaintiff’s place on the 12th of April, 190é, with one Combs, and took- the machine away; 'that be - took the machine away without anybody telling him to, and subsequently delivered it to the managing -salesman of the defendant. Burg then produced his contract of employment With the defendant, -• which provided that Burg was to act as salesman and collector for the defendant, and in consideration' of these services was to receive a commission; that-Burg should locate any machines to the satisfaction of the company’s agent or manager withdut expense to the-company,- and also “ to .repossess and deliver to the' Company any machine they may direct without additional compensation.” On cross-examination Burg testified that plaintiff’s husband moved sev-' eral times after renting the machine and lie was unable to find him ; • that he finally located him in Fifth street; that during this time plaintiff’s husband had paid nothing for the machine, -had broken his agreement with the company by moving and failing to pay the installments. - -

On cross-examination by- the defendant Burg testified■ that he went to this house-, with Combs/ who was the defendant’s managing salesman; that lie took the machine out into the hall, when the plain- ■ tiff hollered “ fire,” which caused a number of persons to gather; that he never touched the plaintiff at all; that the - machine, which was about two feet six inches high, was dragged out and not raised from the floor; that the machine never struck the plaintiff, and that neither ■he nor Combs touched her; that lie never saw plaintiff, lying on the floor; that after the machine was partly out of the room she took hold of it, but that he pulled it away from her; that Combs did- not touch the plaintiff and she was not in any -way assaulted. Combs corroborated this testimony. The court then submitted the case to the jury, leaving it to them to say whether there was an assault per. petrated. If they found an assault had been committed they were then to determine by whom it was committed, and whether it was committed by Burg in the course of his employment, leaving it to the jury to say whether he was a mere collector, and charging that they could not fix the responsibility on the defendant for these acts unless the proof warranted the jury in concluding that he ivas clothed with authority to take the machine; but if an assault was perpetrated by Burg, and .the jury found that he was nothing more than a mere collector, ^tliat there was .then no responsibility upon this defendant. The defendant excepted to the charge to the effect that if the acts of Burg and Combs were in the course of their employment that the defendant was responsible, to which the court said : “ I reiterate that charge, gentlemen. I charge you that the wrongful act, if any, on the part of either of these employees, of itself, is not sufficient to mulct the defendant, but. you must go further and find that such wrongful act, if any, was perpetrated while in the course of their employment.”

The contract between Combs and the company was put in evidence from which it appeared that he was employed as managing salesman to superintend the sales and employment of salesmen or other employees according, to the instruction of the company,'and also to render such other services as the company might require at the store No. 803 Eighth avenue and in .the territory adjacent thereto, for which he was paid in full for his services twenty-five dollars per week. He was not authorized to contract any debt or to bring or permit any suit without express authority from the company, nor to make any purchases or incur any liability on behalf of the company, I do not think that either of these men had authority from the company to take the machine away from the plaintiff’s ' husband and certainly no authority to use force for that purpose. There is nothing -in the relation of either of these men to the defendant nor the authority conferred upon them by their contracts under which they were working for the defendant which authorized them to take any act in recovering possession of this machiné except as directed by the defendant. Assuming that the plaintiff’s husband went to the defendant’s store on Eighth avenue where Combs was in charge arid was told by Combs that he would send and have the machine taken away, that could not bind the defendant because Combs had no authority so far ass appears to take the machine from' the possession of the plaintiff’s husband, and neither Combs, nor Burg had any authority, express or implied, which would make the company liable for,an unauthorized act by either or bófh of them.

This questiop was presented to the Appellate Division of the second department in Feneran v. Singer Mfg. Co. (20 Ap.p. Div. 574). In McGrath v. Michaels (80 App. Div. 458, 460) it was held that: “In a case of this nature, it is actual authority, not apparent authority,, which governs. The jury may have inferred that the acts of Shepard were'evidence that" apparently lie-had authority to remove the. goods without the consent of the plaintiff, and that the assault wás' committed in the exercise of such authority, " But the evidence of the limitation of his employment to. the .collection of the installment or to a removal of the goods only with the consent of the plaintiff is clear, explicit and uncóntradicted.”

. Bhrg and Combs were acting under written contracts with' the defendant in which, their duties were distinctly specified and their authority to act for the defendant, limited.' There was no question of apparent authority from which the plaintiff could assume that the acts of the agents were authorized by the defendant and the liability of .the defendant must depend upon an express authority which defendant gave to these'agents to remove this machine. If neither had authority from' the defendant to retake it then their act in retaking it was, not in the course -of their employment. .Combs had -no authority in relation to machines after they had been sold eithér for cash or under agreements made upon forms and blanks of the defendant. He was the managing salesman authorized to sell and dispose "of its sewing machines ut its'store Ho: 303 . Eighth avenue; to superintend the sales and- employment of' salesmen and other employees in -said territory according to the instruction of the' company and to render, such other services as the defendant should, require, but pvas not authorized to contract any debts on account of defendant or to bring or permit any suit without express authority of the company. .

Burg Was employed to. act. as salesman and collector for the defendant, with no authority to act for it in any other capacity* He agreed that if the defendant desired to'know the-location of any machine he should locate the same without expense to the company aud he agreed to repossess and deliver to the company any machine that they may direct without additional compensation. The only authority in relation to machines that had been sold was that he agreed to deliver to the defendant any machine that they should direct, and the evidence is uncontradicted that he received no direction from the company in relation to this machine. When Combs and Burg attempted to take this machine from the possession of the .plaintiff or her husband, they were not acting under any authority conferred on them by the defendant or in the course of their employment and I do not think that defendant was liable for a trespass committed in taking possession of the'machine.

There was error committed in restricting the cross-examination of the plaintiff’s husband. The plaintiff’s husband had testified as to an interview with Burg at the company’s office on the Monday before this incident in which a person designated by Burg as the superintendent had said: “ If you don’t pay that money, .the balance of your due to-day, to-morrow you will your machine have, taken' away.” ■ "Upon cross-examination he was asked about this interview and said he went to the office of the company and saw Burg there, and he was then asked : “And he introduced yon tlién to some one else at the office? A. Yes, sir. Q. And this some one else said that you ——” whereupon the court said : “ Introduced him to some one else as superintendent. You must frame your question upon the testimony. He introduced him' to some one else as superintendent. That is the basis of my ruling, and I insist on your asking the way he answered.” Counsel thereupon declined to ask it and the court said: “ You cannot put that question.” To this defendant excepted. This was error. On cross-examination counsel was entitled to ask the witness a question which would tend to show just what was said at the interview. He was not "hound to repeat t*he question in the way the witness had answered it before, but was entitled to ask him whether he was introduced to some one else at the office without characterizing the person to whom he was introduced. It is difficult to see how the witness could know that the person to whom he was introduced was the superintendent: He could say that Burg .said he was the superintendent, but counsel was not bound in framing his question to say he was superintendent. A full and free cross-examination in a case of this character is quite important, and where it appeared that the salesman had said that, somebody was superintendent- tlie defendant was entitled to' carefully sift the evidence by cross-examination.

I. think this - judgment should,-therefore, he reversed and a. new trial ordered, with costs to defendant to abide the event. -

Patterson, P. ■ J., Scott and Lambert, JJ., concurred; Clarke, J., concurred iii result.

Judgment and order reversed, new trial ordered, costs to. appellant to abide "event. '