
    Eliza Tyson, Respondent, v. Joseph H. Bauland Company, Appellant, Impleaded with Margaret Gillin and Thomas O’Reilly.
    
      Mdse imprisonment and malicious prosecution charged, in a single count—both causes of action must be established/—probable came—liability of an employer for false imprisonment but not for malicious prosecution—election on the trial.
    
    The complaint in an action contained but a single count which might be treated either as one for false imprisonment or as one for malicious prosecution. The defendant failed to demur to the complaint, but. at the commencement of the trial made a motion to require the plaintiff to elect which cause of action she intended to pursue.
    The action was brought against The Joseph H. Bauland Company, Thomas O’Reilly and Margaret Gillin. The Bauland Company conducted a department store in the borough of Brooklyn and O’Reilly was a special patrolman detailed to do duty therein. He had been appointed by the police department of the city of New York at the instance of the Bauland Company by virtue of section 308 of the Greater New York charter (Laws of 1897, chap. 378), which provides that a special patrolman so appointed shall “ possess all the powers and discharge all the■ duties of the police force applicable to regular patrolmen,” but that he shall be paid by the person or corporation upon whose application he is appointed. O’Reilly had apparently been employed by the Bauland Company as a special officer prior to his appointment by the police department.
    Upon the trial it appeared that a satchel containing twenty-five dollars was stolen from the defendant Gillin while she was shopping in the Bauland Company’s, store; that she reported the loss to a floorwalker,, who advised her to station herself at the main exit; that in the meantime a strange woman accosted the plaintiff, who was also shopping in the store, and handed her the stolen satchel with the request that she give it to the owner, who she said would be found at the door; that at the door Mrs. Gillin saw the satchel in the plaintiff’s hands, and finding, upon opening it, that the money was gone, complained to O’Reilly, who took the plaintiff into custody;, that at the police station Mrs. Gillin made a complaint charging the plaintiff with the crime of grand larceny; that after an examination the plaintiff was admitted to bail to await the action of the grand jury; that both Mrs. Gillin and the plaintiff subsequently testified before the grand jury, but no indictment was found.
    O’Reilly testified that his instructions were to submit all cases of shoplifting to the president of the Bauland Company before taking action, and the latter testified that he had instructed O’Reilly to submit every matter to him before making any arrests. The court dismissed the complaint as to the defendant Gillin, but as to the other two defendants submitted both causes of action to the jury, who found in favor of the plaintiff.
    
      Upon- an appeal taken by the Bauland Company from the judgment entered upon the verdict, it was
    
      Held, that the judgment could not be sustained unless the proof established both causes of action;
    "That the plaintiff had failed to establish a cause of action for malicious prosecution, inasmuch as it appeared that the Bauland Company did not take any part in the prosecution of the plaintiff either in the Police Court or before the grand jury, and for the further reason that the plaintiff had failed to establish a want of probable cause.
    ■;Semble, that the jury might properly have found that O’Reilly’s act was done in ■ . the service of the B_uland Company, and. pursuant to an employment to which his public appointment was but incidental, and that consequently the plaintiff had established a. cause of action for false imprisonment.
    
      ■Qimre, as to whether the plaintiff, at the commencement of the trial, should have been required to elect as to which cause of action she would pursue.
    ■ Goodrich, P. J., dissented.
    Appeal by the defendant, Joseph H. Bauland Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of Hay, 1901, upon the verdict of a jury for' $3,000, and also from an order entered in said clerk’s on the 13th day of Hay, 1901, denying the said defendant’s motion for a new trial made upon the minutes.
    
      John L. Wilkie [ William B.. Goodwin with him on the brief], for the appellant.
    
      Charles L. Woody, for the respondent.
   Hirschberg, J.:

The appellant is a corporation and the proprietor of a large -department store in Brooklyn. The respondent was shopping in the store on the 22d day of August, 1898, and a part of the time was at the shirt waist counter. A Hrs. Gillin was also shopping at the same counter, having a satchel in which among other articles she claims there was twenty-five dollars in currency.. Hrs. Gillin missed her satchel and reported the fact to a floorwalker, by whom she was advised to station herself at the main exit door of the building and see if any one attempted to leave the place with her satchel. Meanwhile, a strange woman, presumably the thief, accosted the respondent and handed her the satchel, with the request that she give it to the owner who she said would be ■ found at the Mfotim ' A.fcthé. door Mrs; Grillin' descried.' the1 'Satchel in the respondent’s hands, and claiming and opening it found tíié money gone, whereupon she. complained to one O’Reilly, a special police officer .in the .appellant’s.employ, by whom the respondent was at once . arrested,, and by whose instrumentality she was taken to a police station. There Mrs. Gillin made a-Written verified complaint charging the respondent with thé; crime -óf grand larceny; an examination was afterwards had and the respondent, held in bail to await the action of the grand jury, before whom both Mrs. Gillin and the respondent subsequently appeared and testified, but by whom no indictment was found.

This action Was thereafter commenced for damages against Mrs. Gillin, O’Reilly, and the appellant. At the close of- the case the complaint was dismissed by the court as. to Mrs. Gillin, and.the jury returned á verdict against the other defendants, from .the judgment entered on which the corporation alone appeals. There was some dispute as to whether the amount of money in the satchel Was tWenty-five or twenty dollars, and a finding either way could be supported. The facts were colored in various particulars by the Witnesses and were qualified by other facts not deemed material to a clear understanding of the. law involved.

The complaint contains bitt a single count, which might be either for false imprisonment or malicious prosecution. It was treated on the trial as a complaint, for both causes of- action, and the learned counsel for the respondent "state, in their brief that “ this is an action for" bpth malicious prosecution and false imprisonment.” At the commencement of the trial the appellant moved that the plaintiff elect which cause of action she intended to pursue, but the court refused to require her then so to do, and no exception was taken tó the ruling. Such election was not required at any stage of the case, hor was the motion renewed. On the contrary, at the close of the case the appellant moved to dismiss the entire cause of action, “ whatever it may be,” and each cause of action separately, all Which- motions were- denied and exceptions taken. The charge to the jury is not returned, and the necessary inference is that a recovery. was allowed, if, in the opinion of the jury, the facts supported either cause of action. -

. The.-two causes of action, however, could not be combined in á.single count (Code Civ. Proc. § 483), although they may be united -in the same complaint. (Marks v. Townsend, 97 N. Y. 590, and cases cited.) By not demurring the appellant must be deemed to have waived the defect, and was probably not entitled to the election at the commencement of the trial as a strict matter of right. As it must be assumed from the record that both causes of action were submitted to the jury and the verdict may have been founded on either, the judgment appealed from cannot be sustained unless the proof establishes both causes of action.

The appellant’s connection with the false imprisonment must arise, if at all, from the facts that the occurrence took place upon its premises' and the arrest was made by its employee. It is claimed by the appellant that O’Reilly was not its employee in this transaction, or, at least, was not acting within the. scope; of such employment at the time, but that: he was discharging his official duty as a special patrolman. He was-appointed by virtue of the provisions of section 308 of the Greater New York charter (Laws of 1897, chap. 378), the material portions of which are as follows: “Special patrolmen, appointed in pursuance of law, may be dismissed by order of the police board; and while acting as such special patrolmen shall possess the powers, perform the duties, and be subject to the orders, rules and regulations of the police department in the same manner as regular patrolmen. Every such special patrolman shall wear a badge, to be prescribed and furnished by the police board. * * * The police board, whenever expedient, may on the application of any person or persons, corporation or corporations, showing the necessity therefor, detail regular patrolmen of the police force, or appoint and swear any number of special patrolmen, to do special duty at any place in The City of New York upon the person or persons, corporation or corporations by whom the application shall be made, paying, in advance, such regular or special patrolmen for their services, and upon such regular or special patrolmen, in consideration of their appointment, signing an agreement in writing releasing and waiving all claim whatever against the police department and The City of New York for pay, salary or compensation- for their services and for all expenses connected therewith ; regular patrolmen so detailed shall be paid at the same rate as provided for patrolmen in this act, but the regular or special patrolmen so appointed shall be subject to the orders 'of the chief of police, and shall obey the rules and regulations of the pólice department, and conform to its general discipline and to' such special regulations as may be made, and- shall wear such dress or emblems as the department may direct, and shall during the term of their holding appointment possess all the powers and discharge all the duties of the police force, applicable to regular patrolmen. The special patrolmen so appointed may be removed at any time by the police board without assigning cause therefor, and nothing in-' this section contained shall be construed to constitute such special patrolmen members of the police force, or to entitle them to the privilege of the regular members of the force, or to receive any salary, pay, compensation or moneys whatever from the said police -department or The City of New York, or to share in the police pension fund.” '

The contention of the appellant is ■ that the effect of O’Reilly’s appointment under this section was to make him altogether a public officer and not at all the company’s servant, notwithstanding his duties were confined to the territory of the company’s property and he was wholly under the company’s pay, and the cases of Wells v. Washington Market Co. (19 Dist. Col. Rep. 385); Hershey v. O’Neill (36 Fed. Rep. 168); Tolchester Beach Improvement Co. v. Steinmeier (72 Md. 313); Dempsey v. N. Y. C. & H. R. R. R. Co. (146 N. Y. 290), and Wooclhull v. Mayor (150 id. 450) are cited in .support of the contention. It must be admitted that the question -is not free from doubt, but I am inclined' to the opinion that upon the facts of the case the jury might have properly found that the act of O’Reilly was done in the appellant’s service and pur-' suant to an employment to which his public appointment was but incidental. It would seem that O’Reilly was in the appellant’s service- as a special officer before his appointment by the police department, as is shown by the letter written by the appellant to the board of police commissioners, stating that we would like to have Hr. Thomas O’Reilly appointed as a special officer. He has been in our employ as a special officer and we desire to continue him as such." The duty of protecting its customers is asserted on the appellant’s part in its answer, and within reasonable bounds is certainly enjoined by the law; the voluntary assumption of such duty as stated in the answer is broad enough to cover cases of thieving from its patrons; O’Reilly testified that his instructions from the appellant were to submit all cases of shoplifting to its president before taking action, and the latter testified that he had instructed. O’Reilly to submit every matter to him before making any arrests. If the arrest in this instance was, therefore, false, and one for which O’Reilly himself could be cast in damages, and if it was within the terms of his general employment independently of his position as. a special patrolman, it cannot be said, as matter of law, that he was not acting in the appellant’s employ within the law of master and servant at the time of the arrest, however a fuller exposition of the facts may present the question upon a new trial. In the much criticised case of Mali v. Lord (39 N. Y. 381), the clerk. called a policeman into the store to make the arrest, and it was held that the employer was not liable, inasmuch as the act of the clerk was without authority. Had the employer himself called the policeman in, there would have been no doubt of his liability, and it-is not easy to see any difference in principle between summoning an officer for the occasion and keeping him' on hand until the emergency arises. The statement that no arrests should be made until first reported is subject to the usual question of credibility attaching to interested witnesses, while disobedience of orders on the part of the employee, if the relation of master and servant exist, has been held in a recent •case to be no defense, under certain circumstances and conditions. (See Cox Shoe Mfg. Co. v. Gorsline, 63 App. Div. 517.) The •character in which an act is done and whether or not within the scope-of a given employment is generally a question of fact, and it has been held that where a private agent' is clothed with public authority to make arrests in order the better to protect his principal’s authority or rights, the latter is not relieved from liability for a false imprisonment committed by the- former. (Gillingham v. Ohio River R. R. Co., 35 W. Va. 588; 29 Am. St. Rep. 827, 834. See, also, Krulevitz v. Eastern R. R. Co., 143 Mass. 228; Dickson v. Waldron, 135 Ind. 507, 521; Railway Co. v. Hackett, 58 Ark. 381.) I see no reason why this doctrine should not be extended to the case of a servant employed to protect his principal’s customers, if such be the. employment here, and who is also clothed with public authority in aid of his private service.

In this connection attention should be called to the conflict of evidence in respect, to the amount of the money taken ;• If less than twenty-five dollars, so that the act was a mere misdemeanor, there was no authority for the arrest without a warrant. If, however, a felony was committed by the unknown woman, the arrest was fully justified provided the circumstances afforded probable cause to believe the respondent guilty. In Anderson v. IIow (116 N. Y¡ 336) it was held that probable cause is a reasonable ground of suspicion supported by circumstances- sufficiently strong, in themselves, to warrant a cautious man in his belief that a person accused is guilty of the offense of which he is charged. In the state of the record, the charge of the judge not having been returned, it is not disclosed whether the question of probable cause was determined by the court as one of law or submitted to the jury as one of fact, and while the verdict must be regarded as wholly exonerating the respondent from criminality, yet if a felony was in fact committed it cannot be said.,'as matter of law that the unfortunate circuin-^ stances which appeared to implicate her were not sufficient to reasonably justify a cautious person in entertaining a strong suspicion of her guilt. It follows that the judgment might probably be sustained were the question of false imprisonment the only one.

On the claim for malicious prosecution, I think the respondent failed to make out a case irrespective of the questions ,of probable cause and malice. The appellant did not prosecute her either before the police magistrate or the grand jury.' The complaint in the store was made by Mrs. Gillin, as was also the complaint in the Police Court, and she alone appeared and testified before the grand jury. At all. events the appellant did not appear at any time, made no complaint and took no apparent part in the prosecution. There is evidence tending to prove that on the way to the police station 'O’iteilly turned the respondent over to a policeman named Murphy* and that his active interest in the case then ceased. The learned trial justice dismissed the case against Mrs. Gillin with the apparent acquiescence of all the parties after all the evidence had been elicited, and if she, who made the accusation, personally demanded the arrest, and conducted the prosecution, cannot be held liable for malicious prosecution, I cannot conceive how the appellant could be held liable merely because Mrs. Gillin’s action was initiated on its "premises. Aside from this consideration, however, the proof wholly failed to establish a want of probable cause. The possession of the stolen property by the respondent, notwithstanding her explanation, being sufficient to support a conviction, it cannot be said that it was insufficient to warrant a prosecution. So far, therefore, as the verdict may have been based on the claim of malicious prosecution, it must be regarded as without warrant of law, and the judgment,, must be reversed, if for no other reason than because it may be founded on this unproven claim.'

The judgment and order should be reversed and a new trial granted.

All concurred, except Goodrich, P. J., who read for affirmance.

Goodrich, P. J.

(dissenting) :

There was neither demurrer nor motion before the trial to correct any imperfections in the complaint which prayed damages for false imprisonment and malicious prosecution, as might have been done upon the ground that the statement of the facts constituting each cause of action wTas not separate and numbered in accordance with section 483 of the Code of Civil Procedure, and while there are conflicting decisions whether or not the plaintiff could have been compelled at the trial to elect which remedy he would, pursue, I think the better opinion is that where the two causes of action are not separately stated, as is the fact here, the plaintiff should have been compelled to elect. Such a motion was made and denied, but no exception was taken.

I do not agree with Mr. Justice Hirschberg- that as the verdict may have been founded on one of two causes of action, i. e., false imprisonment or malicious prosecution, the judgment cannot be sustained unless the proof establishes both causes of action. On the contrary, I think that as the allegations and evidence were sufficient (as he writes) to establish a cause of action for false imprisonment, we might assume, if necessary to support the judgment in the absence of the charge from the record and in view of our ignorance of what questions were submitted to the jury,' that the verdict was based on that cause of action to sustain which it was only necessary to prove detention of the person and the unlawfulness of such detention.

On the other hand, to sustain ah action for malicious ,prosecution, three things must be shown, malice, want of probable cause and the termination of the prosecution ; and, in my opinion, there was evidence to sustain such a cause of action.

We are .thus justified in assuming that the jury found in favor of the plaintiff on both causes of action, but whether they based their verdict on one cause or the other, the evidence is sufficient to sustain the verdict.

I think the judgment should- be affirmed.

Judgment and order reversed and new trial granted, costs to ' abide the event.  