Opinion
June, 1905.
F.J. Moissen [ George Gru with him on the brief], for the appellant.
Alfred C. Cowan, for the respondent.
This is an action for malicious prosecution. The prosecution was instituted, not by the defendant personally, but by one George E. Middaugh, a credit clerk employed by the defendant in the furniture and carpet business carried on by him in the borough of Brooklyn.
The trial judge left it to the jury to say whether the acts of this person were the acts of the defendant, instructing them that the rule was that the master is responsible for the acts of his servants within the general scope of their employment while engaged in their master's business, even though the servant's acts were negligent, wanton and willful.
I do not think that there was enough evidence in the case to justify the learned judge in submitting this question. There was no proof that the defendant had anything to do personally with the prosecution, nor was there any evidence as to the nature or scope of George E. Middaugh's employment, except that he was the credit clerk in the service of the defendant. This fact did not warrant the inference or import that the employee had any authority from the master to prosecute any one criminally on account of offenses committed against the employer. When one is sued for a tort committed by his servant upon another, the liability of the defendant depends either upon proof of some express direction or authorization by the master, or upon facts and circumstances from which such direction or authorization may be inferred. ( Collins v. Butler, 179 N.Y. 156.) This inference may be based upon evidence that the act done by the servant, although wrongful, fell within the scope of the servant's employment; but where, as in this case, there is a failure to establish either express agency or agency growing out of the nature of the services to be rendered, the master cannot be held liable as principal.
It may be that this defect of proof can be remedied upon a new trial; at all events, the present judgment must be reversed.
HIRSCHBERG, P.J., WOODWARD, JENKS and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.