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Turner v. Mellon

Court of Appeals of California
Oct 27, 1952
249 P.2d 41 (Cal. Ct. App. 1952)

Opinion

10-27-1952

TURNER v. MELLON et al. * Civ. 15104.

Wm. J. Connolly, San Francisco, for appellant. Pillsbury, Madison & Sutro, John A. Sutro, Francis N. Marshall, Harry C. Scott, Jr., San Francisco, for respondent.


TURNER
v.
MELLON et al. *

Oct. 27, 1952.
Rehearing Denied Nov. 26, 1952.
Hearing Granted Dec. 22, 1952.

Wm. J. Connolly, San Francisco, for appellant.

Pillsbury, Madison & Sutro, John A. Sutro, Francis N. Marshall, Harry C. Scott, Jr., San Francisco, for respondent.

FRED B. WOOD, Justice.

In this action for damages for false arrest and false imprisonment, the jury gave its verdict in favor of plaintiff Albert Turner against defendant Tevis Mellon and Western Union Telegraph Company, a corporation. The company's motion for judgment notwithstanding the verdict was granted and plaintiff has appealed. Mellon did not appeal.

The principal issue is whether or not there was substantial evidence that the company was legally responsible for the acts of Mellon, its branch manager, in calling the police and mistakenly identifying plaintiff as the person who had robbed the company on four previous occasions, resulting in plaintiff's detention for some twenty hours.

Our examination of the record, in the light of the applicable principles of law, convinces us there was evidence sufficient for the consideration of the jury on that issue and that the judgment should be reversed with direction for entry of judgment upon the verdict.

The first applicable legal principle is that a motion for judgment notwithstanding a verdict may not properly be granted unless there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. Washington v. City & County of San Francisco, 111 Cal.App.2d 368, 244 P.2d 774.

The second principle is that which determines the liability of the employer for the acts of his agent or employee, when applied to the facts of the particular case. The liability of an employer for the act of his employee in causing a false arrest or false imprisonment depends upon whether the employer previously authorized or later ratified it or whether the act of the employee was within the scope of his employment. Here there is some evidence of express authority to do the act, and some of ratification, but the evidence of implied authority is more substantial and upon that we rest our decision. We refer to the principle, applicable here, which recognizes a distinction between an arrest or imprisonment made or caused for the purpose of protecting or recovering the property of the employer (property entrusted to the custody and safeguarding of the employee) and one made or caused for the purpose of punishing of culprit for an offense already committed. In the former type of case, the act of the employee is deemed within the scope of his employment; in the latter, not. See Korkman v. Hanlon Drydock, etc., Co., 53 Cal.App. 147, 149-154, 199 P. 880; Mackie v. Ambassador Hotel, etc., Corp., 123 Cal.App. 215, 223-224, 11 P.2d 3; Pierre v. Great Atlantic, etc., Tea Co., 4 Cal.App.2d 468, 471, 40 P.2d 909; Peckham v. Warner Bros. Pictures, Inc., 36 Cal.App.2d 214, 220-221, 97 P.2d 472; 22 Am.Jur. 380, False Imprisonment, § 38; 35 A.L.R. 645, 654-656; 77 A.L.R. 927, 930; and 18 A.L.R.2d 402, 407-409.

In the Korkman case the general manager of defendant's business caused the arrest of a workman to head him off from causing a threatened jurisdictional strike which would interfere with the conduct of the employer's business and interrupt and retard the conduct of its work. This arrest, designed to prevent or terminate a present interference with the business or property of the employer, was in furtherance of duty of the general manager, as manager of the business or custodian of the property of the employer. In the Mackie case, the reviewing court recognized the principle but found no evidence indicating the arrest was made to effect recovery of the stolen property. Moreover, the employee who took some part in the arrest was not legally responsible for the arrest or for the detention. Naturally, his principal was not liable. In the Pierre case there was some evidence that the store manager caused the arrest for the purpose of collecting money paid out on a bad check, mistakenly believing that plaintiff was the issuer of that check. In reversing a judgment and order of nonsuit, the reviewing court said: 'In the instant case it was a question of fact to be submitted to the jury as to whether Seaman was acting for his employer in attempting to collect for the latter money to reimburse it for a check which had been cashed during the course of its business, and was using criminal process to accomplish this result. The evidence presented by plaintiff, which must be construed in the light most favorable to her case in considering the court's ruling, is such that we cannot say as a matter of law that Seaman was acting outside the course and scope of his employment.' At page 471 of 4 Cal.App.2d, at page 911 of 40 P.2d, a petition for a hearing after judgment in the District Court of Appeal was denied by the Supreme Court, 4 Cal.App.2d page 472, 40 P.2d 909. In the Peckham case although the court did not mention the distinction here under discussion, it was reasonably inferable from the evidence that the arrest of a picket leader during a strike was made for the purpose of preventing interference with the business and injury to the property of the employer. In reversing the judgment based upon a verdict directed for the employer the reviewing court held it was a question of fact for determination by the jury whether or not in making the arrest the agent of the corporate defendant acted within the scope of his authority, and the Supreme Court denied a petition for a hearing after judgment in the District Court of Appeal.

In our case, Mellon was night manager for the company's branch office at 471 Market Street, San Francisco, situated in the Sheldon Building at the southeast corner of Market and First Streets. His hours were from 2 P.M. to 10:30 P.M. His duties included handling messages, handling the general duties of counter clerk, locking the office at 10:30; making up accounts; paying out money. Ordinarily he was directed in his duties by the day manager and officials at the main office. Most of his instructions came through B. A. Scott, assistant to the city superintendent.

Mellon was in charge of the office from 4:30 P.M., the time when the day manager went off duty, until the office was closed at night. A company regulation declared that the night manager should see that all monies taken in by other employees who leave work before the end of his tour of duty are turned over to him. Scott testified that Mellon as night manager had responsibility for all the Western Union funds in his control. A company letter to superintendents, managers and branch managers warned them to be on the alert in all cases of large sums of money handled after banking hours, especially at night, and advised that every precaution be taken to safeguard such funds and that careful descriptions be made of persons present in the lobby or directly outside. Another similar letter stressed the importance of safeguarding company funds and the need for vigilance in the handling of those funds. Scott testified that Mellon as night branch manager had a duty to perform in the safeguarding of Western Union funds in his custody. A company bulletin on Procedure When a Theft Occurs declared, 'Upon discovery of a theft of the Company's funds the following steps should be taken by the Manager immediately:--(a) Notify the local police authorities and secure their cooperation in finding the thief.'

Prior to April 8, 1949, the day of plaintiff's false arrest, Mellon had been robbed four times at this office, each time by the same person, the thief taking only company money. The first of these robberies occurred January 5, 1949, at 8:30 P.M., the thief obtaining $741. The next was at 10:15 P.M. on February 14, the robber getting around $200. The third occurrence was February 26, at 5:20 P.M. The fourth holdup was on March 15, at 8:45 P.M.

The first three robberies, Mellon reported to the police. He also called the company's assistant superintendent, B. A. Scott, after each of the robberies and Scott came to the office and checked the cash. One of them, Scott or Mellon, called the police after the fourth robbery.

Following the fourth holdup and before plaintiff's arrest, Scott installed a buzzer system and arranged with the police for its use. A push button, installed next to the safe, would sound alarms in other parts of the building where plainclothesmen were stationed from about 6:00 P.M. until closing time. It was installed in an effort to apprehend the holdup man. Scott instructed Mellon to sound the alarm if the holdup man came back. Lieutenant Martin Lee, the police official with whom Scott made this arrangement, was asked, 'At that time was Mr. Mellon given authority in the presence of Mr. Scott or by Mr. Scott or his associate to cooperate with the police department in the apprehension of this holdup man?' He answered: 'I don't think there was any formal agreement. My impression is that was understood.'

About 2:30 in the afternoon of April 8, 1949, Mellon observed plaintiff standing on the corner of First and Market Streets, just outside the office, waiting for the traffic signal. He fitted the description of the robber. Mellon watched him. He crossed First Street and went westerly on Market Street and then turned around and in two or three minutes came back down toward the Western Union office again. He came all the way past the office, going in an easterly direction on Market Street. Mellon went to the front door and stepped out on the sidewalk and took another look but the man had disappeared. Mellon did not see him in the block or across the street or any place. Mellon then called the police and told them he saw the robber pass the office or a man that looked like him. In three to five minutes Mellon saw the plaintiff again on Market Street, going west; saw him cross First Street and continue westerly on Market. A policeman in a car answered the call. Mellon got in the car. About the middle of the next block Mellon pointed plaintiff out to the policeman who stopped his car and apprehended plaintiff. Mellon remained in the car. They then went to the police station. Mellon did not swear out a complaint for plaintiff's arrest. The next morning Mellon received a call from the hall of justice, to come down to try to identify plaintiff and file charges. He went to the hall of justice in response to that call. Plaintiff was brought into the room. A police officer told Mellon he could file charges if certain that plaintiff was the man, but, if Mellon was not certain, plaintiff would be released. Mellon got a good close look at plaintiff and heard his voice; was not fully convinced that plaintiff was the man; did not sign the complaint.

This evidence tends to prove that in watching the movements of the supposed holdup man (who was passing and repassing the scene of his four recent robberies, very likely planning his fifth), in reporting him and pointing him out to the police, Mellon quite definitely had in mind the protection and preservation of his employer's funds, by the prevention of further robberies which such a course of action upon Mellon's part conceivably was well calculated to effect.

The threat of the thief's return and further depredations, was very real in the mind of the company's assistant superintendent Scott and of the police, else they would not have installed the buzzer and stationed policemen in the building between 6 and 10:30 P.M. each day. That threat, evidently, was no less real in the mind of Mellon. He was the man in immediate charge of the company's money, responsible for its safe-keeping, and enjoined by the company to be ever vigilant in its safe-keeping. Such apprehension upon the part of all of them was well founded based as it was upon four robberies in a short period of time, further vindicated by the thief's returning and again holding Mellon up and taking company money at 9:20 P.M. on the eleventh day of April, only three days after the arrest of plaintiff. Mellon became so disturbed by 'the suspense' which he said he could not stand, that he quit work on April 16, and resigned his position on April 20, 1949. In his resignation he wrote 'This office, with me the victim, has been held up and robbed five times in about four months. I am afraid to work here any longer.' Without doubt the jury reasonably could infer that in watching plaintiff that day, reporting his presence and pointing him out to the police, Mellon's purpose was the prevention of further theft of company property in his custody and control, acting in the discharge of his duty to safeguard that property, by a method calculated to effect the desired purpose and, under all the circumstances of the case, reasonably within the scope of his authority to use.

The defendant company claims further in support of the judgment, that Mellon took no active part in the arrest or detention and had probable cause for the identification. The trial judge did not so view it. He denied Mellon's motion for judgment notwithstanding the verdict. The record sustains him in that denial. Concerning the degree of Mellon's participation in the arrest, the facts are very like those in Turner v. Elliott, 91 Cal.App.2d 901, at pages 902-904, 206 P.2d 48, in which a similar contention was overruled. As to probable cause, the burden rested upon Mellon to prove its existence. That, in view of the evidence adduced, was a question for determination by the jury. As a reviewing court we cannot say as a matter of law that probable cause existed in the sense of rendering Mellon immune from legal responsibility for his participation in the arrest and detention of the plaintiff. Sebring v. Harris, 20 Cal.App. 56, 58, 128 P. 7; Mackie v. Ambassador Hotel etc. Corp., 123 Cal.App. 215, 221, 11 P.2d 3.

The judgment is reversed with directions that judgment be entered upon the verdict in favor of plaintiff and against defendant Western Union Telegraph Company.

PETERS, P. J., and BRAY, J., concur. --------------- * Subsequent opinion 257 P.2d 15.


Summaries of

Turner v. Mellon

Court of Appeals of California
Oct 27, 1952
249 P.2d 41 (Cal. Ct. App. 1952)
Case details for

Turner v. Mellon

Case Details

Full title:TURNER v. MELLON et al. * Civ. 15104.

Court:Court of Appeals of California

Date published: Oct 27, 1952

Citations

249 P.2d 41 (Cal. Ct. App. 1952)

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