
    Louisa Collins, Respondent, v. James Butler, Appellant.
    
      Injury to a customer kicked by a clerk out of a store — the master is liable, as a matter of law, for the act of the clerk.
    
    In an action brought to recover damages for an assault committed upon the plaintiff by a clerk in the defendant’s store the plaintiff testified that, seeing a basket of apples displayed outside of the defendant’s store, she went inside and expressed to one of the clerks her desire to purchase them; that the clerk brought the apples into the store and laid them on the counter and that the plaintiff laid down five cents in payment therefor; that, after the clerk had put half the apples in a bag he told the plaintiff that she could not have them for five cents, that they were too good; that she replied that they were marked five cents, and that he again told her that she could not have them for that sum; that he thereupon picked the basket up and went to the back of the store; that while she was explaining the transaction to another clerk the first mentioned clerk came back and that she said, “Please to hurry and let me have the apples;” that he said, “Don’t get too damned fresh or you won’t have them at no price — and get out of here — if you don’t I will kick you out; ” that she then took the five cents from the counter and turned her back to the cleric for the purpose of discovering the whereabouts of the manager of the store; that, before she had walked two steps, the clerk in question caught her by the back of the neck and the arm, shouting at the top of his voice to open the door, and that she was then kicked into the street.
    No evidence was given by the defendant tending to establish the defense of justification.
    
      .Reid, that the defendant was liable, as a matter of law, for the act of the clerk.
    Appeal by the defendant, James Butler, 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 14th day of May, 1902. upon the verdict of a jury for $470, and also from an order entered in said clerk’s office on the 14th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      John H. Hogan, for the appellant.
    
      Edward Henry Harrison, for the respondent.
   Hooker, J.:

The plaintiff was examining goods displayed outside the defendant’s store, and relates what took place as follows: “ I said to a boy who was standing there, ‘ Little boy, let me have those apples, will you ? ’ and he says, ‘ You will have to go inside.’ I went inside of the store and was there about a second when one of the clerks came around to me and I said, Let me have that basket of apples outside, please.’ He went outside and got the apples, brought them in and went by the counter, and I walked up to the counter and laid five cents down. He put half the apples in the bag and he looked up at me and he says, ‘ You can’t have those apples for five cents. They are too good.’ I said, ‘They are marked five cents.’ He says, ‘You can’t have them for that,’ and he picked the basket up and went to the back of the store. At that time one of the other clerks came up and I said to him, ‘ I bought those apples and your clerk won’t let me have them.’ He says, ‘ Where is he ? ’ I said, ‘ He has gone to the back of the store.’ He says, ‘ He has no right to do anything like that.’ And that time the young man came back, and I said, ‘ Please to hurry and let me have the apples,’ and he said, Don’t get too damned fresh or you won’t have them at no price — and get out of here — if you don’t I will kick you out.’ I took the five cents off the counter and turned my back to the young man to see if I saw the manager of the store. Before I had walked two steps, he caught me by the back of the neck and this arm, shouting at the top of his voice to open the door to open the door, and when I knew anything I was kicked in the street.”

The evidence of the defendant did not materially differ from this account, except that his witnesses testified that she picked the apples over and carried them into the store herself, and that the clerk objected to giving them to her at the price of five cents, after she had sorted them and selected the best. There was no evidence to sustain a defense of justification.

The court withdrew from the jury all questions as to defendant’s liability, and instructed them that the one question for them to determine was the amount of damages, if any, the plaintiff had sustained. The defendant at the close of the evidence moved to dismiss the complaint. This motion was denied. After the charge he requested that he might go to the jury upon the question of defendant’s liability. The court refused these requests, and the defendant excepted.

One of the earliest cases in which the question here presented arose was Mali v. Lord (39 N. Y. 381). The facts there were somewhat similar to those disclosed by the evidence here. Judge (xeover, speaking for the court, said, “the inquiry is, whether a merchant, by employing a clerk to sell goods for him in his absence, or a superintendent to take the general charge and management of his business at a particular store, thereby confers authority upon such clerk or superintendent to arrest. * * * If not, then such acts are not within the scope of the authority delegated to the superintendent, and the employer is not responsible therefor, for the reason that while in their performance the servant is not engaged in the business of the master, any more than in committing an assault upon or slandering a customer.” That case was decided in 1868, and it is instructive 'to follow the changes which have taken place in the law from that time to the present, for that case is no longer to be considered as a controlling authority. Dupre v. Childs (52 App. Div. 306; affd. on opinion below, 169 N. Y. 585) has this to say in relation to that case, and the affirmance in the Court of Appeals being on the opinion of the court below, the language has the sanction of the court of last resort: “ Although the case of Mali v. Lord (39 N. Y. 381) was undoubtedly well decided upon the facts there made to appear, it cannot be said, I think, now to be an accurate statement of the law as to the responsibility of the master for the wrongful act of his servant. The later cases, which are cited above, have laid down the rule in such different terms that the case of Mali v. Lord must be assumed to have been considerably limited.”

The first case after Mali v. Lord (supra) which attracts attention is Rounds v. Del., Lack. & West. R. R. Co. (64 N. Y. 129); that, was an action to recover damages for injuries sustained by the plaintiff in consequence of being kicked off from one of defendant’s baggage cars by the baggageman. The opinion calls attention to Mali v. Lord as well as to other authorities upon the question of wrongs committed by agents, and continues as follows (p. 136): “It is quite useless to attempt to reconcile all the cases. The discrepancy between them arises not so much from a difference of opinion as to the rule of law on the subject as from its application to the facts of a given case ;” and in affirming the judgment for the plaintiff the court lays down the principle that “ If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master’s business, and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine this, issue upon a consideration of all the facts and circumstances proved.” Had this case arisen immediately after the decision in Rounds v. Del., Lack. & West. R. R. Co. in 1876, it would have found the law in such a state as probably to have required submission of defendant’s liability to the jury for its determination of the fact; but the progress of civilization and the developing customs of trade, evidenced partly by the centralization of industry requiring the employment of larger forces of agents, year by year, have evidently induced the courts to extend the rule still further, and a little later we find the Court- of Appeals, in a per curiam opinion, using this language : “The master who puts the servant in a place of trust or Responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances •and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another.” (Cohen v. D. D., E. B. & B. R. R. Co., 69 N. Y. 170, 173.) The following year the court took occasion to lay down the proposition in language which has not been modified since and has recently been approved by the Court of Appeals. It is said in Mott v. Consumers’ Ice Co. (73 N. Y. 543), “for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master .will be responsible, whether the act be done negligently, wantonly, or even willfully. * * * p>U£ if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect •some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible.”

Judge Haight, writing for the Court of Appeals in Girvin v. N. Y. C. & H. R. R. R. Co. (166 N. Y. 289, 291), says that The rule of liability governing cases of this character is well stated in the case of Mott v. Consumers’ Ice Co. (73 N. Y. 543),” and he quotes the above language, which must now be taken to be settled law affecting questions of master’s liability on account of wrongful •acts of servants. One modification, however, took place after the establishment of this rule,' and is to be found in Ochsenbein v. Shapley (85 N. Y. 214). Defendants in that case were boilermakers, and placed one of their new boilers in a public street and directed their superintendent to test it. One of the defendants^uggested that the pressure during the test should not exceed 150 pounds, but in answer to the request of a customer the superintendent answered : “ I will test it to two hundred anyhow.” The experiment began, with the safety valve loaded to a pressure of 198 pounds, and he attempted to hold down the safety valve that the pressure might go above that figure, when the boiler exploded ¡and plaintiff was injured. It was there held that the act of the superintendent was reckless and foolhardy, and as he was acting in defendants’ business they were chargeable, although in making the test he went beyond their express wishes, and that a refusal to submit the question to the jury was proper. The doctrine laid down in that case must be taken to recognize a change in the rules since the decision of Rounds v. Del., Lack. & West. R. R. Co. (supra). The court uses this language (at p. 221): “ About these facts there is neither dispute nor contradiction. We must measure them by the rule already stated ” (having cited Mott v. Consumers' Ice Co., supra), “ and determine whether they raised a question of fact which ought to have been submitted to the jury. In testing the boiler Carter was acting in the master’s business and in the line of his own employment. That was the master’s duty intrusted to the servant. The experiment of actual trial was an essential element closing and finishing the manufacture. The test was an ordinary and usual act in the business, and had been many times before applied by the act of the same servant. In making the test the latter went beyond the master’s wish. There was no peremptory command to stop at a pressure of one hundred and fifty pounds.”

We think, therefore, the trial judge was right in withholding the question from the jury; the facts were undisputed and did not admit of different or contrary inference, and the question became merely a question of law and was correctly determined.

The rule must now be considered as settled, and the principal difference of opinion in relation to defendants’ obligation arises upon the question whether the evidence presents questions of fact for the jury, or questions of law to be determined by the court. The centralization of industry and the immense volume of business transacted in the present day by large mercantile concerns render necessary the employment of clerks and agents in great number. Few merchants in the larger cities to-day give personal attention to the service of customers. That branch of the business is left to clerks and salesmen. At the present day, too, by many arts, every effort is made to induce prospective customers to enter mercantile establishments, examine wares there offered for sale and transact other-lawful business. The time has come when the law, always elastic to mete out justice as the growing needs of mankind’s progress, require, should hold the master liable for the wrongful acts of servants toward those lawfully upon the scene of his place of business.

The facts presented in this case, undisputed as they are, make out a question of law to be determined by the court, and that the acts of the salesman were, as matter of law, within the usual scope of his employment “ while engaged in his master’s business, and done with a view to the furtherance of that business and they master’s interest,” and while the servant was engaged in waiting upon the plaintiff as a customer or engaged in any transaction with her in any way relating to the subject of the master’s general business, he did not go outside his employment, nor act without regard to that service. Geraty v. Stern (30 Hun, 426) is one of the earliest cases called to our attention which advances this proposition, but it did not go to the extent of holding it as matter of law. The later case of Fogarty v. Wanamaker (60 App. Div. 433), decided in this department, is also to be considered in this connection. The court was there called upon to decide an appeal from an interlocutory judgment overruling a demurrer; Mr. Justice Woodwabd wrote the opinion and took occasion to point out the trend of authority, using this language (p. 437): “We are clearly of opinion that, under the rule quoted above, the complaint does state facts sufficient to constitute a cause of action; that the allegation of false imprisonment, through the conduct of the defendant’s agent or servant, is good if the plaintiff, on the trial, is able to establish that the person or persons so-detaining and imprisoning her were, in fact, the agents or servants of the defendant in the particular transaction.”

We'have not overlooked Palmeri v. M. R. Co. (133 N. Y. 261) and Dwinelle v. N. Y. C. & H. R. R. R. Co. (120 id. 117). While the decisions in those cases are based largely upon the doctrine of Mott v. Consumers' Ice Co. (supra), they are hardly germane, for the former decision proceeded on the theory that the servant was actually engaged in a preservation of the master’s property, and the decision in the latter case rested more particularly upon the contractual obligation of the defendant to the plaintiff to transport him to Eew York and to care for his comfort and safety while in transit.

These considerations lead us to the conclusion that the question was matter of law and that the court did not err in refusing to submit the question of the defendant’s liability to the jury.

The judgment and order should be affirmed, with costs.

Woodward, Hirschberg and Jenks, JJ., concurred ; Bartlett, J., not voting.

Judgment and order affirmed, with costs.  