
    Mary O’Connell, Resp’t, v. Morris Samuel et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed November 13, 1894.)
    
    1. Appeal—Cueing error.
    Error in refusing to dismiss the complaint, at the close of plaintiff’s case, for want of evidence is obviated, where the deficiency is afterwards supplied by defendant’s evidence.
    
      2. Master and servant—Assault and battery.
    Where a collector, while acting within the scope of his employment, commits an assault and battery upon the plaintiff in retaking certain prop-. erty sold to her under,a conditional sale, the'fact that he deviated from his instructions in proceeding to get possession of the property, does not necessarily relieve the employer from the consequences of such conduct.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      S. D. Bentley, for app’lts; B. Keeler, for resp’t.
   Bradley, J.

The action is founded upon the charge that in October, 1893, the defendant Beechler made an assault upon the plaintiff, and beat her; that he was then engaged in the service of the other defendants; and that, by reason of such relation, they are chargeable with the injurious consequences suffered by her. The defendants Samuel (carrying on business in the name of the People’s Credit Company,' in the city of Rochester), by written contract to that effect, leased to the plaintiff a baby carriage, at the weekly rental of one dollar, title to pass to her on payment of $13.50; in the meantime, title to remain in the company, with the right, on default in payment, to retake the property. The plaintiff, having paid nine dollars, defaulted in payment. And at the time in question the defendant Beechler called at the residence of the plaintiff, to obtain payment or the possession of the carriage. He was informed by her that she was not prepared to pay, and he expressed his purpose to take it. To this she did not consent. And the evidence on the part of the plaintiff tended to prove that she resisted his effort to enter the house; that he overcame her resistance and entered, and that in doing so, he assaulted her, tearing her dress, and inflicting upon her some bodily injury. There was some conflict in the testimony of the parties in that respect. But the question of fact may be deemed disposed of by the verdict of the jury in favor of the plaintiff. At the close of the evidence on the part of the plaintiff, and before any was introduced on the defense, motion made in behalf of the defendants Samuel for dismissal of the complaint as to them was denied, and exception taken. It is urged that there was error, because there was no evidence to support the action against them. There may have been some force in the exception on this review, if nothing further had appeared to charge them. But, as evidence afterwards given, tended to prove their relation to the other defendant in the business in which he was engaged at the time in question, the objection was obviated. Painton v. Northern Central Railway Co., 83 N. Y. 7.

It is also insisted that the assault made by the defendant Beechler upon the plaintiff was beyond the scope of his employment, and, therefore, that the other defendants are not chargeable with its consequences. He was in the service of the People’s Credit Company, in making collections of money due for such property so leased by the company, with instructions to retake the property from those who were in arrears, and supposed tv intend not to pay. The defendant Beechler had unsuccessfully called upon the plaintiff for payment, several times before this occasion. And then he may have had some reason to suppose that any further effort for that purpose would be futile. He, of course, was not instructed to use forcible means to enter houses, or to do acts of personal violence to get possession of the goods. But when he proceeded to take the property he was acting in the business of his employers, and in that sense in the scope of his employment; and, although his action to accomplish such purpose may have been or become willful on his part, his employers were not, for that reason, necessarily relieved from the consequences of his conduct while so engaged, prejudicial to others, for which he would be personally liable. In the present case, the conclusion was warranted by the evidence that, although the defendant Beechler may have deviated from the instructions of his employers in proceeding to get possession of the property, he did not depart from his purpose of reclaiming the property for them, and consequently may, throughout, have acted within the scope of his employment. Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Mott v. Consumers' Ice Co., 73 id. 543; Quinn v. Power, 87 id. 535; Palmeri v. Man. Railway Co., 133 id. 261; 44 St. Rep. 894. The cases cited by the defendants’ counsel, where it was held that the injuries complained of were not inflicted by the servants while acting in the scope of their employment, are distinguishable from the case at bar, and the dicta in some of them are not sustained by the latter cases on the subject. The charge of the court to the jury in that respect was that, if they found that Beechler willfully assaulted the plaintiff, he alone was liable, and the other defendants were not liable for the assault, “ unless the assault was committed while he was carrying out the purpose for which he was sent there, and while he was endeavoring to do what he believed to be within the scope of his authority in taking the carriage.” The defendants were not entitled to a more favorable submission of the question to the jury. Although the matter of the belief of the deféndant Beechler that he was acting within the scope of his employment does not go in support of .the fact that he was doing so, it bears upon his good faith only in executing the purpose mentioned in the proposition, to which it added nothing prejudicial to the defendants.

- In charging, as a legal'proposition, that if the jury found that Beechler entered the house without the plaintiff’s objection, and there committed an assault on her, he was a trespasser from the beginningj the court erred. That rule is applicable when a party enters under authority given by law, and not if he does so by license or permission of a person authorized to grant it. Allen v. Crofoot, 5 Wend. 506; Dumont v. Smith, 4 Denio, 319. This part of the charge was followed immediately by the instruction: “That is to say, if he entered her house upon her invitation, and, after he got in there, committed an unlawful assault, he is in the same position, so far as his responsibility for the assault is concerned, as if he had entered the house in the first instance without her permission.”

This was well enough, in view of the fact that the action was not treated as one for trespass upon the premises.

The court further charged the jury that: “If you find that he tried to effect an entrance upon those premises without her permission, or having, upon her permission, entered the house, and ¡that he then committed an assault upon her, then I charge you that whatever he did in defending himself from the force she used he did unlawfully, and he is liable for the assault.”

Also charged them that: “You are to determine whether he entered lawfully or unlawfully upon the premises, but you are not at liberty to bring in any damages whatsoever for the trespass upon the land, for his unlawfully entering into the house of the plaintiff. The sole question here is whether there was an assault committed upon her person or not; but, in determining whether there was such an assault, it may become necessary for you to consider whether he was a trespasser when he entered upon the premises.”

These last two propositions, in relation to the erroneous one before mentioned, apparently seem to give some force to the exception taken to the latter, and thus arises a question not free from difficulty. But in view of the evidence, and of the charge as a whole, it is evident that the defendants were not prejudiced by that specific portion of it. The court charged the jury that if the plaintiff made an attack on Beechler, without any attempt on his-part to crowd his way into the house, or to enter it against her permission, he had the right to defend himself from an assault, made upon him by her. The instruction to the jury was to the effect that the plaintiff was not justified in using force against Beechler, unless he unlawfully, and by force, sought to enter the house without her consent, or made an assault upon her after he had entered it. If, after he entered the house, he made an unlawful assault upon the plaintiff, it cannot well be insisted that she had not the right to use force to expel him from the house, and that resistance on his part to such attempt would not have been justified. It is not held to the contrary in People v. Gulich, Labor Supp. 229. In the view taken of the case, there was no error prejudicial to the defendants in any of the rulings on the trial. The judgment and order should be affirmed.

All concur.  