Opinion
April, 1904.
A.E. Walradt, for the appellant.
James Burke, Jr., for the respondent.
The action is for trespass in that servants of the defendant broke open a cellar door in order to take out a meter belonging to the defendant in the premises of the plaintiff. The plaintiff served a bill of particulars wherein he claimed for compensatory damages, $150; punitive damages, $75; damages to the cellar door and for the repair of the same, $25. The learned Municipal Court justice charged the jury that if they believed the servants of the defendant "broke in," they might award "any sum of damages you believe proper up to the limit of $250." The jury returned a verdict of $150. The defendant moved for a new trial under section 254 of the Municipal Court Act, and excepted to the denial of that motion.
I cannot say that the damages are excessive. It is true that the counsel for the appellant states in his points: "As to the actual damages to the lock and doors, they were merely nominal," and it is not contended that there was any other injury to the property of the plaintiff. It is also true that the jury upon the evidence could not award punitive damages against this defendant, for there was no proof that it had authorized or ratified its servants' acts, or that this act of the servants was done after the unfitness of the servants was known to the defendant. ( Muckle v. Rochester Railway Co., 79 Hun, 32, 38; Cleghorn v. N.Y.C. H.R.R.R. Co., 56 N.Y. 44.) But there remains the question of compensatory damages. Compensatory damages embrace the determination of the extent of the injury, insult, invasion of the privacy and interference with the comfort of the plaintiff and his family. (WOODRUFF, J., in Ives v. Humphreys, 1 E.D. Smith, 196.) Under the circumstances, it strikes me that the $150 found by the jury by way of compensation cannot be said by an appellate court to be excessive.
The point is made that the defendant is not liable. It is liable if the servants' acts were commanded or authorized by it. And it is held that "the authority may be express or implied, and a previous command may be proved either by direct evidence or by any legal evidence which will satisfy the jury." ( Welsh v. Cochran, 63 N.Y. 181, 184.) There is in evidence an order from the defendant to its servants that they should collect five dollars and forty cents or remove the meter, and a return thereon that it had been removed. This was produced by the defendant on the trial, and, therefore, presumably it had been returned to it by its servants. Even though the master had given no explicit directions to break open the door in order to make the removal, a master may be held liable for the acts of a servant within the general scope of his employment, while about his master's business, even though the act be "negligent, wanton or willful." ( Grimes v. Young, 51 App. Div. 239, per WILLARD BARTLETT, J., citing Mott v. Consumers' Ice Co., 73 N.Y. 543; Ochsenbein v. Shapley, 85 id. 214; Burns v. Glens Falls R.R. Co., 4 App. Div. 426; Higgins v. Watervliet Turnpike Co., 46 N.Y. 23; Meehan v. Morewood, 52 Hun, 566; affd., 126 N.Y. 667.) Conceding that the Transportation Corporations Law (§ 68) gave to the defendant the right of entry, yet the abuse thereof by breaking open the door constituted it a trespasser ab initio. ( Six Carpenters' Case, 8 Coke, 146a; Adams v. Rivers, 11 Barb. 390.)
The judgment should be affirmed, with costs.
All concurred.
Judgment of the Municipal Court affirmed, with costs.