Art. 7. Liability for Acts of Servants and Agents. ARTICLE VII. LIABILITY FOR ACTS OF SERVANTS AND AGENTS. PAGE. SUBDIVISION 1. Liability of corporations for acts of servants. 596 2. Liability of individuals and copartners for acts of servants SUBDIVISION 1. Liability of Corporations for Acts of Servants. 600 The liability of a corporation for an arrest made by one of its employees is very fully considered in Mulligan v. New York & Rockaway Beach R. R. Co., 129 N. Y. 506, and Palmeri v. Manhattan Ry. Co., 133 N. Y. 261. In the Mulligan Case it was held that while the law is settled that the common carrier by its contract of transportation undertakes to protect the passengers against any injury arising from the negligence or willful misconduct of its servants, while engaged in performing a duty which the carrier owes to him, citing Stewart v. B. & C. Co., 90 N. Y. 588, yet upon the facts disclosed by the record the case does not come within the principle there established. In the Palmeri Case, the court considered the Mulligan Case and said: "What materially distinguishes the present from the Mulligan Case is that there the servant of the company was not acting for the protection of the company's interests, but went quite outside of the line of his duty to perform a supposed service to the community by procuring the arrest of criminals whom he knew the authorities were endeavoring to apprehend. That did not enter into the transaction of his employer's business; whereas, here the ticket agent clearly was engaged about the company's affairs, but, in the belief of the jury, unlawfully detained the plaintiff and insulted her by slandering her character." Both these cases are considered in opinion of Hatch, J., in Penny v. N. Y. C. & H. R. R. R. Co., 34 App. Div. 10, 53 N. Y. Supp. 1043, to the general rule that it matters not that the servant's acts were reckless and unnecessary, if injury was inflicted, or if he passed his authority or departed from his instructions, or through infirmity of temper added slander to his other wrongdoing, all these are unavailing to shield the master so long as Art. 7. Liability for Acts of Servants and Agents. the things that are done are done in the prosecution of the business of the master, even though such acts be not only negligent but wanton and willful, citing Burns v. Glens Falls R. R. Co., 4 App. Div. 426, 38 N. Y. Supp. 856. Unless the servant is acting within the scope of the authority, the master is not responsible for the servant's acts. Judgment in favor of plaintiff was reversed upon the ground that the acts of the person making the arrest did not appear to have been done within the scope of his authority. That it was quite as consistent with the conclusion that he acted from personal motives and for his own purposes as that he acted in the prosecution of any matter committed to his care by the defendant. In McKay v. Hudson River Line, 56 App. Div. 201, 67 N. Y. Supp. 651, held, that the action of a purser of a steamboat, in aiding in the search of a woman who, it was claimed, had stolen property, was not within the scope of his authority, that the act was not done in the performance of any duty which he owed the defendant, and that he had no authority from the defendant to act by reason of the woman having at the time of the alleged arrest passed from the pier. Where there was a dispute between a passenger and a conductor, as to whether the passenger paid his fare, and the conductor had the passenger arrested, it was held that he was acting within the scope of his authority, and that the railroad company was liable for the imprisonment. Rown v. Christopher, etc., Ry. Co., 34 Hun, 471. A railroad company is liable for false imprisonment by one of its employees while engaged in its business, whether the same is willful or malicious. One who is placed by such a company on its station platform with power to suppress disturbance is an employee of the company, and the company is liable for the misuse of his authority. Shea v. Manhattan Ry. Co., 27 St. Rep. 33, 7 N. Y. Supp. 497, citing Stewart v. Brooklyn & Crosstown Ry. Co., 90 N. Y. 588. In Hamel v. Brooklyn, etc., Ry. Co., 6 N. Y. Supp. 102, the defendant was held liable for an illegal arrest by its servant, whether the defendant authorized the arrest or not. "If its employee acted within the general scope of his duty, unjustifiably caused it (the arrest), the defendant must respond." A railroad company is bound to protect its passengers while in transit from the violence committed by strangers and copassengers, Art. 7. Liability for Acts of Servants and Agents. and must protect them absolutely against the misconduct of its own employees and servants. Hence, if a passenger sustains damage by reason of the misconduct of an employee of the railroad company, it is immaterial whether the servant was acting within the scope of his employment or not. So held where the plaintiff was unlawfully arrested while a passenger on the defendant's train by a detective in the employ of the defendant on a charge of theft. The case proceeds upon the theory that the wrong is in violation of contract of carriage. As to whether the act is in violation of such contract is for the jury. McLeod v. N. Y., C. & St. L. R. R. Co., 72 App. Div. 116, 76 N. Y. Supp. 347, 110 St. Rep. 34. Where a special officer of a railroad testified that his duties were to watch for people stealing coal, and if he caught them to lock them up,- Held, that it could not be deemed a matter of law that in arresting a person several blocks from the premises of the railroad company he acted outside of the scope of his authority. That presuming his instructions limited his authority to the premises of the railroad company, they were, nevertheless, responsible because the act was within the general scope of the employment, and even though some particular direction had been disregarded. Kastner v. L. I. Ry. Co., 76 App. Div. 323, 78 N. Y. Supp. 469, 112 St. Rep. 469. For a case where a railroad corporation was held liable for the wrongful imprisonment of plaintiff by a policeman and detective in the employ of defendant, see Fitzpatrick v. N. Y. & M. B. R. R. Co., 5 N. Y. Supp. 685, affirmed without opinion 125 N. Y. 682. For former appeals in the same case, see 15 Week. Dig. 506, affirmed 101 N. Y. 617. Although defendant corporation provides a room in its premises for a police station, it is not responsible for the arrest of a person not a guest by an officer who is not shown to have been employed by the defendant. Fitzpatrick v. N. Y. & N. B. R. R. Co., 15 Week. Dig. 506. Where a railroad corporation may lawfully lease its road to another company, and the lessor takes possession and manages and operates the railroad, the lessor is not liable to a passenger for injuries sustained by reason of the wrongful acts of the lessee's servants. Fisher v. Metropolitan El. Ry. Co., 34 Hun, 433. Mott v. Consumers' Ice Co., 73 N. Y. 543, though not a case involving false imprisonment, is in point upon the general ques acts. Art. 7. Liability for Acts of Servants and Agents. tion as to when a servant charges his master with liability for his The test is whether the wrongful act was in the course of the employment, or outside of it. See also Stewart v. Brooklyn, etc., Ry. Co., 90 N. Y. 588, which, although involving a question of liability for assault and battery, is relevant on the question as to when a servant is acting within the scope of his authority. See also Dwinelle v. N. Y. C. & H. R. R. Co., 120 N. Y. 117. On the question of the liability of a corporation for the tortious act of its servant, see also Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129. This case does not involve, however, the question of false imprisonment. The question as to whether a servant is acting within the scope of his authority so as to bind his master is ordinarily to be determined by the jury. Where the plaintiff, riding upon the defendant's railway, had originally purchased a ticket, but lost it before reaching his destination, and where he was arrested while attempting to pass through the gate at his destination without a ticket, it was held that the detention was unlawful, and that the defendant was responsible for the act of the gatekeeper. The case turns upon the theory that at the most the plaintiff was a debtor to the defendant for the amount of his fare, and that it could not be enforced by imprisonment, but that the defendant should sue for the amount thereof. The court further says: "If the defendant had the right to detain him to enforce payment of the fare for ten minutes, it could detain him for one hour, or a day, or a year, or for any time until compliance with its demand. That would be arbitrary imprisonment by a creditor without process or trial, to continue during his will until his debt should be paid. Even if a reasonable detention may be justified to enable the carrier to inquire into the circumstances it cannot be to compel payment of fare." Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77, affirming 24 Hun, 506. For a case where defendant, a corporation, was held liable for false imprisonment by instigating the arrest of servants of the corporation, see Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995. For a case where it was held that the arrest of the plaintiff was not shown by the record to be at the instigation of the defendant corporation, see Noad v. Canadian Pacific R. R. Co., 56 App. Div. 33, 67 N. Y. Supp. 265, 101 St. Rep. 265. Art. 7. Liability for Acts of Servants and Agents. SUBDIVISION 2. Liability of Individuals and Copartners for Acts of Servants. Mallach v. Ridley is reported on first appeal, 43 Hun, 336, where the judgment was reversed for error in charge and excessive damages. Second appeal is reported, 24 Abb. N. C. 172, where it was held that inasmuch as a storekeeper invites the public to enter his premises, and subject themselves to the custody and control of his subordinates, like a carrier of passengers, he should be held responsible like a carrier for all the acts of the subordinates toward one who accordingly enters, even when such acts are committed within the strict line of employment. Held, that where a floorwalker was accustomed to see customers and give directions to the saleswomen, and also to look out for thieves and pickpockets, and to watch people and ascertain if they conduct themselves lawfully, it was sufficient to make it a question for the jury whether he was instructed to detain suspected persons. The court said: "The floorwalker evidently had the right to arrest and apprehend thieves, and under that authority if he apprehended an innocent person his employers are necessarily responsible. They cannot confer such an authority upon the employee, and claim the benefits of his action when he acts advisedly and absolve themselves from all risk when he acts on insufficient evidence." In Mali v. Lord, 39 N. Y. 381, it was held that while a man is responsible civilly for the wrongful act of his servant committed in the transaction of his business, he is not responsible for the willful injury committed by the servant while so engaged, unless he so act by the express or implied authority of his employer; and that where the superintendent and clerks of the firm directed a policeman to arrest and examine the person of a woman suspected of stealing goods which was so done without the knowledge or express or implied knowledge of the owners of the goods, that the master was not liable. That the servant is not impliedly authorized to do that which the master himself, being present, would not be authorized to do. This case is distinguished in Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, opinion Gray, J., in which he says that Judge Andrews in Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129, points |