Kelly v. Newark Shoe Stores Co., 190 N.C. 406 (1925)

Nov. 4, 1925 · Supreme Court of North Carolina

190 N.C. 406

D. E. KELLY v. THE NEWARK SHOE STORES COMPANY, M. SAMUELS AND COMPANY, Incorporated, and F. L. REDFORD.

(Filed 4 November, 1925.)

1. Employer and Employee — Master, and Servant — Principal and Agent— “General Manager” — Criminal Law.

One employed as “general manager” of a local branch of a chain of stores operated in several towns, impliedly at least has the control thereof in his locality, with reference to its local employees, and his acts with respect to them are held to be those of the corporation he thus represents.

3. Same — Torts—False Arrest — Respondeat Superior.

Where there is evidence that the local “general manager” has had an employee or salesman at his principal’s store falsely arrested and imprisoned for the embezzlement of his employer’s funds, it is sufficient to be submitted to the jury upon the issue of the employer’s liability therefor in an action for damages.

3. Same — Corporations.

A corporation is liable for the torts of its employees or servants committed in its behalf within the scope of their employment as in case of individuals.

4. Indictment — Probable Cause — Criminal Law.

An indictment for embezzlement in the Superior Court is prima facie probable cause for its prosecution.

Appeal by defendants from New HaNOVeb Superior Court. Dunn, J.

The plaintiff sued defendants, alleging that the defendants, Shoe Stores Company and M. Samuels Company, owned and operated a chain of shoe stores, with E. L. Redford, general manager in charge of the store in Wilmington, and that the plaintiff was employed as a salesman in the Wilmington store; and that in the Wilmington store, on Saturday, 2 July, 1921, Redford, the defendants’ general manager, about eleven o’clock at night, in the presence of other people, locked the doors of the store and falsely and maliciously did: (a) charge the plaintiff with embezzlement of $10.00 in money belonging to said store; (b) unlawfully arrest and imprison the plaintiff by locking the doors of said building, and, removing the keys, did hold him under arrest; (c) procure a policeman and deliver the plaintiff to policeman, under arrest, and caused the plaintiff to be taken down front street in a patrol wagon in the presence of crowds, and a warrant to be procured, charging plaintiff with embezzlement, and from which, imprisonment in the city prison ensued; (d) that the said defendants did maliciously prosecute and cause the false imprisonment of plaintiff.

The defendant, M. Samuels and Company, denied the material allegations of the complaint, admitting that plaintiff was employed as a salesman in tbe Wilmington store. At tbe close of plaintiff’s evidence, motion for judgment as of nonsuit was allowed and plaintiff appeals.

Plaintiff’s evidence tended to sbow tbat plaintiff was experienced in tbe mercantile business, a man 47 years of age; bad been employed by tbe defendant in tbe operation of its Wilmington store some three or four months. He was hired by tbe auditor and manager who came to Wilmington and opened up tbe store, one Murphy, who left tbe store in charge of tbe defendant, Redford, who was general manager of tbe company’s business in this store, with tbe title of “General Manager”; tbat Murphy, who started tbe store hired tbe plaintiff and turned him over to Redford; tbat tbe help for tbe store was all employed when Redford came, except tbe cashier, Mr. Wooten’s wife, who was employed by Redford; tbat Redford paid off tbe help; tbat plaintiff was receiving .$12.00 per week and a commission of 5% on bis sales of shoes and 10% on sales of findings; tbat Redford paid tbe salaries, but sent in a statement showing what tbe commissions were, and checks with employees’ names on them were forwarded from headquarters and cashed by tbe local store. Tbat after plaintiff bad been working a little while, be quit, because bis commission check was not showing up as it should, but was hired back by Redford; tbat when be left, tbe defendant gave him a letter of recommendation, and tbat be came back to work at tbe request of tbe defendant, through Redford; tbat on 2 July, 1921, bis commission checks were not coming as plaintiff contended they ought to come; tbat Mrs. Wooten, tbe cashier, kept tbe commission tickets; tbat plaintiff and Wooten were tbe two salesmen; tbat Mr. Redford sold occasionally. When a pair of shoes was sold, tbe plaintiff put down tbe stock number, tbe size of tbe shoe, tbe number of tbe shoe and tbe cost, on tbe ticket, and tbe money was delivered to tbe cashier. Tbe manager computed tbe tickets and figured up tbe commission. Tbe salesmen did not handle tbe tickets or cash after delivering them to tbe cashier. Tbat they were not giving plaintiff credit for tbe amount of stock be was selling; tbat be kept tbe account himself; tbat on 2 July, about 12 o’clock, plaintiff told Redford tbat be was going to quit tbat night for good and always; tbat Redford kept after him during tbe day to remain, and be refused; tbat plaintiff worked until about 10 or 10:30 tbat Saturday night, which was tbe .regular time for an inventory; tbat while plaintiff was putting up tbe shoes tbat bad been taken down, Redford went to tbe back door and locked it and snatched tbe-key out, breaking tbe string, and locked tbe other door and took tbe key out. Plaintiff was putting up tbe shoes and Mr. and Mrs. Wooten were standing there and .the plaintiff began to take tbe inventory when Bedford came up and said to him in the presence of others, “Kelly, you have stolen $10.00 of the company’s money and you have it in your pocket and I want it.” Plaintiff said, “T have not a penny of the company’s money nor any one else’s money but my own. Bedford said that I did, and a controversy and fight started and Wooten ran in between us and stopped the fight and Mrs. Wooten was scared and I walked off to one side.” In a' few minutes the policeman came and the store was crowded with men and Bedford said to the policeman: “This man has ten dollars of the company’s money and I want you to take him and lock him up unless he gives it to us.” The plaintiff said, “I have nothing except that which belongs to me.” The street was full of people. The plaintiff was arrested by the policeman and brought out on the street before all the people, put in the “Black Maria” and carried to the police station. Bedford was with plaintiff all the time. When we got to the police station he swore out a warrant charging the plaintiff with embezzlement of $10.00. Plaintiff was searched in Bed-ford’s presence and had on his person twenty-eight dollars and some few cents — two ten dollar bills, one five and three ones. This money was made up as follows: Two ten dollar bills and one five, from the Atkinson rent check for $25.00, the balance of $5.00 from a check cashed by the Newark Stores Co., after paying the dollar to the wash-woman, and some change for plaintiff’s child to go to the moving pictures. The $25.00 check was identified, as well as the $5.00 check, both dated 1 July, 1921.

Bedford remained with the plaintiff from the time he locked the doors until plaintiff was searched, not leaving him more than two feet at any time. Plaintiff was locked up in the city prison all night. He arranged bond next morning and got out about ten o’clock. Bedford prosecuted the case before the recorder; that both he and Murphy, the auditor, sat with the prosecution at the trial; that the first case was nol. prossed. This warrant charged larceny of $10.00 in money, the property of E. L. Bedford. As soon as plaintiff was released another warrant was sworn out and he was rearrested and this case was sent up to the Superior Court; that his arrest.and imprisonment and trial were published in the newspapers; that he had never been in trouble before, and since that has been unable -to get employment, except temporarily; that he suffered humiliation; that plaintiff was indicted in the Superior Court for embezzlement, was tried and acquitted by a jury verdict. Mr. and Mrs. Wooten were witnesses for the prosecution and they testified that he took some money; that Bedford said they told him that he took it; and that plaintiff’s general reputation was good.

Upon conclusion of plaintiff’s evidence, tbe defendants, M. Samuels, Incorporated, and Newark Shoe Stores Company, moved for judgment as of nonsuit, wbicb was allowed, and tbe plaintiff excepted and appealed.

Weelcs & Cox and Fowler & Grumpier for plaintiff.

Ruarle & Campbell for defendants.

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.