(}trottit Court, 8. D. Net/) York. September 5, 1888.)
MALICIOUS PROSECUTION-PLEADING-NEGATIVE PREGNANT.
The complaint, in an action for malicious prosecution and false imprisonment, alleged that defendant, by bis agents. arrested plaintiff on a false charg-e, without authority or reasonable cause. The answer denied that defendant or bis agents falsely or maliciously or without reasonable cause did any of the acts alleged. Held tbat, while the answer contained a negative pregnant, yet, as a subsequent paragrapb alleged that one of defendant's clerks. having reasonable cause to believe that plaintiff had committed larceny, caused her to be arrested by a police officer, it did not admit that the arrest was made by defendant. and deny only the allegation of malice. Especially should this view be taken as the objection was not made until the trial, and plaintiff had not been misled.
SAME-PROBABI,E CAUSE-ARREST BY PRIVATE PERSON.
Plaintiff testified on the trial that she went to defendant's store, where she was unacquaintetl, took an umbrella from the counter, and, to enable her to examine it more closely, carried it a short distance to the light near the door. when she was roughly seized by defendant's salesman. and pushed through the store into the basement. After an examination there. in presence of a policeman and others, she was arrested. taken to the station-house. and, after another examination, locked up until bail was g'iven. She was subsequently tried andacquitted. Defendant proved that the umbrella counter was 40 or 50 feet from the door. and was in the lightest part of the store. Several witnesses testified that plaintiff took the umbrella, walked out of the store, and was proceeding down the street. having pulled off. the. tag, when the salesman politely touched her, and requested her to return into the store, and the two walked quietly to the ladies' lunch-room, in the basement; that she confessed her guilt then, and afterwards to tbe captain of police. Held, that a verdict for defendant would not be disturbed, as the salesman bad used no force, and as, upon defendant's testimony, a larceny had been committed, justifying an arrest by a private person.
SAME-PRINCIPAL AND AGENT-SPECIAl, PATROLMEN.
Under Laws N. Y. 1884. c. 180, § 269, providing tbat special patrolmen shall be subject to the orders of the superintendent of police. etc.. and shall possess all.the powers and discbarge all the duties applicable to regular patrolmen. a special patrolman is not tbe mere servant of a person on whose premises he is appolllted for duty, and by whom his salary is paId, and sucb person is not responsible for his official acts. A person is not liable for an arrest made by a policeman on information-furnished by such person's clerk without his knowledge or authority.
On Motion for New Trial. This is an action for false imprisonment and malicious prosecution. On the 4th of August, 1887, the plaintiff, .a resident of Philadelphia, came to the store of the defendant, on Sixth avenue, New York, in company with a female friend. She had never been there before, and was a total stranger to the defendant and his employes. Her version of the subsequent occurrences is as follows: She says she went to the umbrella counter, took up an urnbreUa, and, to enable her to examine more closely the quality of the silk, carried it a short distanneto the light Ilear the door. While she was adjusting her eye-glasses for this purpose, she was roughly seized by the arm by Sannders, a salesman of the defendant, and pushed through the store, and into the basement. After an examination there,
HERSHEY V. O'NEILL.
in the presence of a policeman and two or three of the defendant's employes, she was arrested, and taken to the station-house, and, after -being examined by the officer in charge, she was locked up for two or three hours, until bail was given by a friend. She was subsequently tried at a court of special sessions, and acquitted. This is, in brief, the testimony of the plaintiff. It is uncorroborated, except in a few unimportant details. On the other hand, the defendant proved that the umbrella counter was between 40 and 50 feet from the door in question, and that it was in the lightest part of the store. Several witnesses testified that the plaintiff took the umbrella, walked with it through the store out upon the sidewalk, and was proceeding !lown Sixth avenue, having in the mean time pulled off the tag, when the salesman, Saunders, followed her, touched her politely on the shoulder, and requested her to return into the store. No physical restraint was used, and the two walked quietly through the store to the ladies'lunch-room in the basement. The special police officer stationed on the premises was then summoned, and the plaintiff, having in substance admitted her guilt, was taken to the Twenty-Ninth precinct police station. She was there examined by the .captain of police in charge, and again confessed the larceny. Therenpon she was locked up until bail was furnished, some two or three hours afterwards. The following morning she appeared in court, and was held for trial. Upon these facts the jury found a verdict for the defenflant. The plaintiff now moves for a new trial upon the following grounds: First, the answer admits that the acts complained of were the acts ofdefendant's.servants, and he should not, therefore, have been permitted to dispute their authority; second, it was error to instruct the jury that if they believed the defendant's witnesses their verdict should be for the defendant, for the reason that, even upon the defendant's testimony, there was a technical arrest by an unauthorized person; third, it was error to instruct the jury that the defendant was not liable, in anachon of false imprisonp1ent, for the acts of Officer Kenney. Henry G. Ward, for plaintiff. Edward a. James, for defendant.
COXE, J., (after stating thefacts as above.) Being more than ever convinced, after a re-examination of the evidence, that the verdict was right. and in accordance with the great preponderance of testimony, the court is not disposed to grant a new trial upon any ground which is merely technical and formal in character. Where the court can see that a proper result has been reached, that the party has succeederl who ought to succeed, the endeavor should be to preserve the fruits of the trial. Every doubt should be resolved in favor of affirmance; every exception not'affecting the merits should be disregarded. Where a controversy lJasterminatl;ld in a correct and honest verdict, it is for the advantage of both parties that litigation should cease. The question arising on the pleadings is this: The complaint allegeS, in substance, that the defendant, by his agents, servants, and employes, arrested the plaintiff on a false charge, without right, authority, or rea:-
sonable cause. The answer denies that the defendant, or his agents, servants, or employes, falsely or maliciously, or without reasonable cause, did any of the acts alleged against him or them in said complaint. It is asserted, by the plaintiff that here is an admission that the arrest was made by the defendant's agents, and a denial only of the allegation that they acted maliciously and without probable cause. In other words, the defendant admits that his agents did the acts in question, when he denies that they did those acts maliciously. It is true that the answer contains a negative pregnant, that it is not an artistic piece of pleading, and that amotion to make it more definite and certain wonld. in all probability, have prevailed. There certainly is plausibility in the contention that the authority of the defendant's servants to act as they did is admitted; and yet it is quite clear, taking the answer in its entirety, that it was not the intention of the pleader to place the defendant in this attitude. The plaintiff could hardly have been misled by this denial. In a subsequent paragraph the answer sets out fully the facts as they were understood by the defendant. It alleges that one of his clerks, having l'easonable cause to suspect the plaintiff of the commission of the crime of larceny, took the umbrella from her and caused her to be arrested. This was true. The defendant could not, truthfully, have de.nied it. .The answer further alleges that the person who made the arrest·wass police officer appointed pursuant to law. All this is inconsistent with the theory that the defendant admits that the plaintiff was apprehended and arrested by his agents, acting under his authority. It is'not the spirit of modern jurisprudence to defeat a party, or deprive him of a substantial right,· by a Ilice and overstrained construction of ·his pleading. On the contrary, where, as in this case, the objection is .not made until the trial, it should not be heeded, unless the other party has been misled to his injury; and, in all cases where it can properly be donel·ample opportunity for amendment should be permitted. It is thought, therefore, that the answer, taken as a whole, is susceptible of a more liberal interpretation than that placed upon it by the plaintiff, and that within the authoriiy of Wall v. Water Cb., 18 N. Y. 118. it ma,y be held to put all the corresponding allegations of the complaint in issue. But, if this were otherwise, no reason is suggested why an amendment may, not, even now, be made. Railroad Co. v. McHenry, 17'Fed.Rep. 414, and,cases cited. There was no mistake in instructing the jury that they should find for the defendant if they believed his witnesses. To say· that the acts of SaunderS.,' as related by him, amounted to an arrest, is surely to view them in la light superlatively harsh. No force was used. There were no threats. The plaintiff returned voluntarily; she was not compelled to' do so by anything which Saunders did. The sidewalk on Sixth avenue was not a proper place to transact business, and his request, or demand eveu, that she should return, was not inconsistent with a satisfactory!&rrangement of the difficulty inside the store. That the plaintiff so understo,od it is quite evident, for she testifies: "I supposed that he was going. to. take me to the proprietor of the store, and I turned around and
walked with him, back." And'again, upon the defendant's testimony, a larceny had actually been committed justifying an arrest by a private individual. Burns v. Erben, 40 N. Y. 463. ' The third and last assignment of error raises an interesting and novel question: Was the court right in holding that the defendant is not responsible for the acts of Kenney, because he was a police officer? Notwithstanding the able and ingenious argument of plaintiff's counsel, it is thought that the ruling made at the trial should remain unchanged. Kenney, under the terms of the act, (Laws 1884, c. 180, § 269,) was. subject to the orders of the snperintendent of police; was reqnired to obey the rules and regulations, general and special, of the police board; to conform to its discipline, and wear its dress or emblem. The aCt further provides that a patrolman so appointed shall be subject to removal by the board without cause assigned. and "shall possess all the powers and discharge all the duties of the police force applicable to regular patrolmen." Kenney, therefore, possessed all the common-law and statutory powers of constables, except for the service of civil process. It was made his duty by law at all times of day and night to prevent crime, detect and arrest offenders, protect the rights of persons and property, and, with or without warrant, to arrest all persons guilty of violating the law. He was, it is true, appointed for duty in the defendant's store, and was paid by the defendant. In all other respects, so far as this controversy. is concerned, he was as p.luch a member of the metropolitan force as any patrolman. It was the intent and purpose of the law to invest him with all the rights,powers, privileges. and immunities ofa regular policeman. If this were hot the object, if the status of the person so appointedremains unchanged, if the relations of master and servant still -exist,it is not easy to see why the act was passed. The provision that the person particularly benefited shall pay the salary does not render nugatory 'the other prOViSIons of the act, and deprive 'the policeman of the broad authorityexpressly'delegated. He is not, in 9ther words, the mere servant of the person who pays him. It is understood that this construe:t.ion has been placed upon the law by the 8tate courts, and it would seem to be more in accordance with reason and common sense than the opposing theory. . There can be no force in the contention that the defendant is liable for a false imprisonment because the arrest by Kenney was instigated by Saunders. To hold a merchant liable for the acts of a police officer be. cause one of the merchant's clerks. with no authority from him, in his absence, and without his knowledge, gives information to the officer which induces him to arrest a person who, apparently, has committed a crime in the informant's presence, would be going far beyond . any reported case. Teal v. Fissel, 28 Fed. Rep. 35l; Von Latham v.Libby, 38 B8,rb. 339; BrO'U!il, v. Chadlicy, 39 Barb. 253. . The ca1.lSe was presented as fairly for the plaintiff as she had a right to expect. Had the trial taken place in a state tribunal, it is altogether probable that it would have been terminated uy the court, and riot the jury. Mali v. Lord, 39 N. Y. 381; Burn8 v. Erbenj40 N. Y.46S.,:· .
The plaintiff was a total stranger to all in the store. Necessarily she was judged, not by what she was, but by what she seemed to be. It was a most natural inference from her conduct that she intended to take the defendant's property. The testimony is overwhelming that she took the umbrella without asking permission, und with no word of explanation carried it 40 feet through the store, and was actually walking with it down Sixth avenue when she was requested to return. It would seem that a clerk who hesitated to protect his employer's property in such circumstances would be most derelict in his duty. The plaintiff's conduct, to state it mildly, was exceedingly suspicious, and for the unfortunate occurrences which followed she has herself alone to thank. It would seem that no impartial person can read this record and reach a conclu. sion different from that reached by the jury. The motion is denied.
(Owcuit Oourt, E. lJ. Micldgan. September 10,1888.)
BHElUFll'-LIABILITY Oil' SURETIES-EMBEZZLEMENT- UNAUTHORIZED RECEIPT Oil' MONEY IN LIEU Oil' BOND
A sheriff hblding a writ of replevin for execution received from the plaintiff in replevin a deposit of money in lieu of the bond required by statute for the diligent prosecution of the suit, and subsequently embezzled the money. Held. that the receipt of the money. not being authorized by law. was an extraoIDcial act. and that the sureties upon the bond of the sheriff were not liable for the amount. '
: At Law. This was a demurrer to a declaration against a sheriff and his bondsmen for failure to pay over certain moneys alleged to have been received by him in his official capacity. The conclition of the sheriff's bond was "if said Hilton shall well and faithfully in all things perform and execute the duties of the office of sheriff of said county of St. Clair during his continuance in said office, by virtue of said election, without fraud, deceit, or oppression, and shall pay over all moneys that shall or may come into his hands as such sheriff, then said obligation to be void; otherwise to be and remain in full force." The facts relied upon as a breach of the condition of the bond were substantially as follows: In September, 1880, one John L. Smith brought an action of replevin in the, circuit court for the county of St. Clair against John McKay et al., to recover a.loto£ cedar posts and poles. The writ was placed in the hands of thedefendantJIilton for execution. The sheriff took possession of the property named in the writ, andmude the usual demand upon the plaintiff.for a bond inreplevin, as required by the statutes of Michigan, conditioned upon tpe prosecution of the suit, and payment of any judgment' recovered by the defendant. Smith, being unable to furnish the bond, that he procure a friend to deposit with the sheriff $1,500 in