Opinion
No. 38597.
January 5, 1953.
1. False imprisonment — agency — temporary store manager.
Where the temporary manager of a store had no authority to cash checks drawn by customers but some employee in the store did each such checks which turned out to be worthless, whereupon the manager consulted a justice of the peace who advised that an affidavit be made charging the customer with obtaining money under false pretenses, which was done without the knowledge of the store owner, and the customer was arrested and placed in jail, but the charge was subsequently dismissed, the owner of the store was not liable for false imprisonment, since there is no implied authority in such an agent to resort to criminal proceedings to collect a debt.
Headnote as approved by Roberds, P.J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, Judge.
Strange Strange and Edwin A. Dunn, and Homer W. Pittman, for appellant.
The law is, and it has always been that the principal is liable for the acts of his agent in instituting a criminal prosecution maliciously and without probable cause, if the institution of such prosecution was: (1) expressly authorized; (2) or subsequently ratified by the principal; (3) or was within the scope of the agent's employment. Fisher v. Westmoreland, 57 So. 563.
We contend that the appellee's manager was acting within the scope of her employment at the time she committed the wrongful acts against the plaintiff, and that her master, the appellee herein, is liable for her acts.
There is a marked distinction in cases of this kind. Our courts have held that if the agent's acts are purely for the purpose of vindicating the laws and punishing the offender, the principal is not liable. On the other hand, if the agent's acts, even though unauthorized, are such that, if successful, the principal would be benefited or that they tended to protect or preserve the principal's property or to prevent a loss of the principal's property, then the principal is liable. 22 Am. Jur. 378, Sec. 37; 35 A.L.R. 648; Mulligan v. New York R.B.R. Co., 29 N.E. 952, 14 L.R.A. 791, 26 Am. St. Rep. 539; Cobb v. Simon, 97 N.W. 276, 100 Am. St. Rep. 909; Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359; Birmingham News Co. v. Browne, 153 So. 773; Rounds v. Delaware L. W.R. Co., 64 N.Y. 129, 21 Am. St. Rep. 597; Ward v. Kentucky River Coal Corp., (Ky.), 42 S.W.2d 530, 77 A.L.R. 59; Daniel v. Atlantic Coast Line R. Co., 136 N.C. 517, 67 L.R.A. 455, 48 S.E. 816; Richburger v. American Express Co., 18 So. 922; Pearson v. Great Southern Lbr. Co., 63 So. 759; Loper v. Yazoo M.V.R. Co., 145 So. 745; A.L.I. Rest., Sec. 454; Southern Ry. Co. v. Hunter, 74 Miss. 444, 21 So. 304; Barmore v. Vicksburg, Shreveport Pacific Railway Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495, and Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713.
Hannah, Simrall Aultman, for appellee.
A. The burden of proof is on the appellant to establish the agency of Mrs. Whigman in the premises of her acts here before the Court. The appellant has not only failed to establish this fact, but evidence offered in her behalf conclusively establishes a fact that there was no agency, and that her acts were without the scope of her authority. Fisher v. Westmoreland, 101 Miss. 180, 57 So. 563; Russell v. Palestine Ins. Co., 106 Miss. 290, 63 So. 644; Markley v. Snow, 207 Pa. 447, 56 A. 999, 64 L.R.A. 685; Daniel v. Ry. Co., 136 N.C. 517, 48 S.E. 816, 67 L.R.A. 455, 1 Ann. Cas. 718; Young v. L.B. Price Mercantile Co., 167 Miss. 409, 148 So. 643; State Life Ins. Co. of Indianapolis, Indiana v. Hardy, 189 Miss. 266, 195 So. 708; Brown, et al. v. Kisner, 192 Miss. 746, 6 So.2d 611; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405.
The general rule is stated in 34 Am. Jur. 758, Sec. 89, Malicious Prosecution. It reads as follows: "The principles of law governing the liability of an employer or principal for a malicious prosecution instituted or carried on by a servant or agent are simple, and any difficulty which may arise grows out of their application to the facts of a particular case. If the prosecution was previously authorized or subsequently ratified, or if within the scope of the servant's or agent's employment, the employer or principal is liable; otherwise he is not.
In applying the foregoing general rule, it is ordinarily held that the criminal prosecution of an offender, even where the offense was against the property of the principal, is not within the scope of an agent's employment.
B. The appellant offered no proof of ratification by the appellee of the acts Mrs. Whigman. In the absence of proof, there are no facts in the record from which a jury could make a finding of fact that there had been a ratification. Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405.
C. The appellant, having failed to offer any evidence that the prosecution was authorized by the appellee having failed to show these acts to be within the scope of Mrs. Whigham's employment, and having failed to offer evidence of a ratification, it became encumbent upon the trial court to sustain appellee's motion for a peremptory finding and to direct judgment in his favor.
As our Court said in Fisher v. Westmoreland, 101 Miss. 180, and in Russell v. Palestine Ins. Co., 106 Miss. 290, it is encumbent upon the plaintiff in cases of this sort to show, (1) that the act of the agent was expressly authorized, or (2) that the act was within the scope of the agent's employment, or (3) that the acts of the agent were ratified by the master. The appellant failed to prove any one of these prerequisites.
Mrs. Beatrice Hudson, the appellant, sued Abe Pevsner, the appellee, and Mrs. W.O. Whigman for damages for false arrest and imprisonment. The jury returned a verdict against Mrs. Whigman and she did not appeal. The trial judge granted a peremptory instruction in favor of Pevsner and Mrs. Hudson appeals from that action.
Mrs. Hudson's arrest was caused by Mrs. Whigman. The deciding question is whether Pevsner was liable for the action of Mrs. Whigman. The learned trial judge held he was not.
In January, 1951, Pevsner was the owner and operator of three jewelry stores — one each in Hattiesburg, Laurel and Meridian. He resided in Hattiesburg. The manager of the Meridian store, called the Diamond Shop, had severed his connection therewith. Mrs. Whigman was temporarily in charge of that shop. Mrs. Hudson owed the shop, but the amount of the indebtedness is not shown. On January 23, 1951, Mrs. Hudson presented to some one in the Shop a check for $35, signed by Roy Horton, payable to cash. Her account was credited with $10 and she was given $25 in cash. On January 27, 1951, Mrs. Hudson got the Shop to cash another check. This one was for $60, was signed by W.T. Horton, the father of Roy Horton, and was payable to Mrs. Hudson, or bearer. Mrs. Hudson endorsed it. Her account was credited with $13 and she was given $47 in cash. Mrs. Hudson was unable to name the employee who had cashed the checks. Mrs. Whigman did not personally know Mrs. Hudson or the Hortons. Both checks were drawn on the Bank of Louisville, Mississippi. Both were dishonored and returned to the Shop. Mrs. Whigman called the Bank over the telephone and was informed the drawers had no account, or funds, at the Bank with which to pay the checks, and also indicated that other bad checks had been drawn on this Bank by these parties. Mrs. Whigman went to see Mrs. Hudson, but no adjustment was made. Mrs. Whigman then went to the sheriff, who directed her to a justice of the peace. She explained the situation to the justice of the peace, who advised her to make affidavit against Mrs. Hudson for obtaining money under false pretenses. Mrs. Whigman signed the affidavit prepared by the justice of the peace. There is grave doubt whether the affidavit charged any crime but we will assume that it did. Mrs. Whigman carried to the sheriff the warrant for the arrest of Mrs. Hudson which the justice of the peace issued. The sheriff went to see Mrs. Hudson, who discussed the situation with him and who made some effort, without success, to adjust the matter. He then arrested and placed her in jail. The prosecution was later dismissed by the county attorney. Mrs. Whigman said she felt responsible to her employer for the money paid out on these bad checks.
Mrs. Whigman, before she took this action, undertook to contact Mr. Pevsner by telephone to know what to do, but was unable to talk with him, he being out of the state. He knew nothing of it until sometime thereafter. He never ratified what she did.
As to her authority, Mrs. Whigman was temporarily in charge of the Shop for about a month. She had the keys with authority to open and close it. She was generally in charge of the sales of merchandise and collections therefor. It is not shown she had power to sell on credit. We will assume she had the authority to receive money in payment of debts owing the Shop by its customers. There is an entire absence of testimony showing she had authority, express or implied, to cash checks and pay out the employer's money thereon. And, a fortiori, she possessed no authority to have persons arrested and jailed when their checks, so cashed, were turned down by the drawee bank. And even though she had possessed the authority to cash such checks, criminal prosecution of the person receiving the money was not an appropriate means to collect the debt. In Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644, this Court said, "Should we hold that appellee was responsible for the acts of Klein, it would be to hold, when an authority to collect a debt is shown, the law will imply the authority to institute criminal proceedings against the debtor in case the debtor fails or refuses to pay. We do not believe that this is sound in reason or in law." Fisher v. Westmoreland, 101 Miss. 180, 57 So. 563; Russell v. Palatine Ins. Co., supra; Young v. Price Mercantile Co., 167 Miss. 409, 148 So. 643; State Life Ins. Co. v. Hardy, 189 Miss. 266, 195 So. 708; Brown v. Kisner, 192 Miss. 746, 6 So.2d 611.
Affirmed.
Hall, Kyle, Arrington and Ethridge, JJ., concur.