
    Ovide Dupre, Respondent, v. Samuel S. Childs and William Childs, Jr., Appellants.
    
      Liability of the proprietors-of a restaurant for the act of their general manager in, procuring an arrest.
    
    A man who bad gone into a restaurant left it, before being served,, without stopping at the cashier’s desk. A rule of the restaurant provided that every one passing the cashier’s desk must stop whether he had a check or not, but this-rule was not posted or displayed so that customers could become aware of it. The general manager of the restaurant, supposing that the man was attempting to evade payment of his bill, followed and overtook him outside, a few steps from the entrance, and, after some conversation, procured his arrest.
    
      Held, that the proprietors of the restaurant were responsible for the act of the-general manager;
    That the existence of a rule that the manager should not go out of the restaurant, until he had been relieved by some one else did not excuse them from liability.
    Ingraham and McLaughlin, JJ., dissented.
    Appeal by the defendants, Samuel S. Childs and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, 1900, upon the verdict of a jury for $450, and also from an order entered in said clerk’s, office on the 16th day of January* 19.00, denying the defendants’ motion for a new trial made upon, the minutes. . .
    
      Albridge C. Smith, for the appellants.
    
      Arthur C. Palmer, for the respondent.
   Rumsey, J.:

The defendants are keepers of a restaurant at No. 815 Broad way-in the city of New York, and one Tullís was, on the 6th of May, 1898* the manager of the restaurant and had general supervision of the place. On the morning of that day the plaintiff went into the restaurant with the intention of getting his breakfast. He sat down at. a table, but after he had done so and before he had given his order* something occurred which caused him to change his mind, and he got up and left the restaurant. He did not stop at the cashier’s, desk as he went out. There is a rule in the restaurant that every one who passes the cashier’s desk must stop, whether he had a check or not, although no such rule was posted or displayed so that customers could become aware of it. The plaintiff, without' stopping, went out of the restaurant, although he was called upon several times as he went along to stop at the desk, but he paid no attention to the calls. Tullis followed him, and having overtaken him ten or twelve feet from the entrance, stopped him by grasping his right shoulder. The plaintiff testifies that up to that time he had heard no one speak to him. There is some conflict in the testimony of the plaintiff and the other witnesses as to what occurred after Tnllis stopped the plaintiff on the street, but as the question was presented fairly to the jury and they found for the plaintiff, we must assume that all disputed questions were decided in his favor. The plaintiff testifies that when he was stopped he was told that he had broken a rulé of .the restaurant by passing the cashier’s desk without stopping, and that he must go back, and that he refused to do so. Tullis thereupon procured him to be arrested and he was taken to the -station house and the- charge made that he had gone into the restaurant and then had left without stopping at the cashier’s desk. There is no doubt that when Tullis stopped the plaintiff outside of the entrance on the sidewalk he asked him whether he had been served and whether he had a check, and not only does the plaintiff swear to that but Tullis himself so testifies. Just whether Tullis at the station house charged the plaintiff with having violated a rule of the restaurant in passing the cashier’s desk without stopping is not quite clear from the testimony of Tullis. Hq admits substantially that there was such a rule and that it was a subject of conversation at the station house, and as was said above the story of the plaintiff was adopted by the jury and must be assumed to be true.

We have then these facts : Tullis was the general manager and had the supervision of the defendants’ restaurant; the plaintiff having gone into the restaurant, but not having been served, and not being indebted to the defendants for anything, started to leave the place without stopping at the cashier’s desk; Tullis, supposing that he had been served and had not paid, immediately went after him and caught up with him a few steps from the entrance of the restaurant and spoke to him about his not having stopped at the desk, and as a result of that conversation procured him to be arrested, and in accordance with the request the plaintiff was taken to the station house and immediately discharged. There aróse a natural inference ■ that Tullís was acting in the interest of defendants, whose representative he was, and in an attempt to obtain from the plaintiff payment of his check if he had one.

The only question upon that state of facts was whether the jury might properly find that Tullís, in acting as he did, was pursuing an . authority, which was implied from the nature of his duties and which was vested in him by the defendants; and if he was there can be no. doubt, that the defendants are liable for his act.

It is said that the defendants are not liable for what was done outside of the restaurant, because there was a general rule that the manager should not go out of the restaurant until he had been reliexmd by someone else. He was there as the alter ego of the defendants and to do precisely .those things xvhich the defendants might have done and would do if present; and if in the performance of those duties it became necessary for him, in order to collect a bill, to step outside the restaurant and to procure payment from the person who had not paid his bill inside, there is no doubt that he might not only properly do it, but was expected to do it. The rule that he should not leaxm the premises was made, undoubtedly to require him' to stay in charge of the restaurant until- he was relieved, but it xvas not intended, nor could it be intended, to restrain, him from doing on the steps of the restaurant, just what he might do inside by xvay of collecting a bill. The rule is that for the acts' of the servant xvithin the, general scope of his employment, xvhile ' engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master xvill be responsible xvhetlier the act be done negligently, xvantonly or even xvillfully. In general terms, if the' servant misconducts himself in the course of his employment his acts are the acts of the ' master, xvho must answer for them. Even if those acts be willful, although it has been intimated in several cases that for such acts-the master will not be responsible, yet these intimations are subject to the material qualification that the acts designated “willful” are/not done, in the course of the service, and. xvere not such as the'servant intended and believed to be for the interest of the master. In such case the master would not be excused from liability by reason of the quality of the act. (Mott v. Consumers’ Ice Co., 73 N. Y. 543, 547.) The rule laid down in this case has been invariably followed. (Montgomery v. Sartirano, 16 App. Div. 95 ; Quinn v. Power, 87 N. Y. 535; Rounds v. D., L. & W. R. R. Co., 64 id. 129; Mallach v. Ridley, 15 N. Y. St. Repr. 4; 47 Hun, 638; O'Connell v. Samuel, 81 id. 357; Palmeri v. Man. R. Co., 133 N. Y. 261.)

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. In that case it was quite clear that the salesman had no authority to do any such act as. he did do, and the case was decided, as was said in the case of Palmeri v. Man. R. Co. (supra), upon the ground that the general employment of the salesman could not warrant such an act. But in this case Tullís was more than a salesman ; lie was the general manager and superintendent of the defendants. He was in general charge of their business, and from that fact it must be assumed that he had all the powers in the management of this restaurant which the defendants themselves would have had had they been there, and in this aspect the case is entirely different from the case of Mali v. Lord.

It is said that the question of the authority of Tullís was not submitted to the jury, but that the case was submitted to them upon a false issue, not raised by the pleadings. But if that were so, no objection was made to it upon the part of the defendants, either upon the trial or here.. They did not request that the question of the authority of Tullís be submitted to the jury. Indeed, there can be no question as to that fact, it being conceded by defendants themselves that he was there as general manager, and that he had all the authority which they themselves would have had. It is quite true that an exception was taken to that paid of the charge which instructed the jury that if the plaintiff was arrested because he had violated the regulations of the restaurant under the circumstances disclosed by the evidence, then the defendants were liable. But when it appeared, as it did by the undisputed evidence, that Tullís was there in control of the defendants’ business, the court correctly charged that if he caused the arrest to be made in an effort to compel the performance by a customer of a rule which the defendants ■had made for the protection of their, business, the plaintiff was entitled to a verdict. The-exception to the exclusion of the sergeant’s blotter is of no importance, whether it might properly have been admitted in evidence or not, because it appears in the sergeant’s testimony that the facts which he testified to were substantially the same facts that appeared upon the blotter, so the defendants had the benefit of those facts. The judgment and order must, therefore, be affirmed, with costs.

Patterson and Hatch, JJ., concurred ; Ingraham and McLaughlin, JJ., dissented.

Ingraham, J.

(dissenting).

I do not concur in the affirmance of this judgment. There can be no dispute but that plaintiff was illegally arrested, and the only question is whether the defendants are liable .for the act of their' manager in causing the arrest. There is no evidence that the defendants .ever authorized Tullís to procure the arrest of any one, and no rule in force at the restaurant was proved which gave Tallis, authority to cause the arrest to be made, nor can I find any evidence of a rule that any one who passed the cashier’s desk must stop whether he had a check or not. Childs, one of the defendants, and Van Fleet, the cashier, swear that there was no such rule. There was nothing which would justify a finding that Tullís in causing the arrest of the plaintiff was acting within the scope' of his employment or under any authority, either express or implied, conferred upon him by the defendants. While it is true that the restaurant was under the management of Tullís, this arrest took place, not in the restaurant, but on the street; and assuming that the defendants conferred upon the manager authority to do such acts as were necessary to preserve order in the restaurant or to prevent persons from leaving it without paying what was owing, there was no implied authority for Tullís to follow a customer into the street and after an altercation with him there, to procure his arrest. The case of Mali v. Lord (39 H. Y. 381) has been considered as settling the extent of the implied authority conferred by the master upon the superintendent or manager of a store in relafcion to causing the arrest of its customers. It was there held that by the employment the master confers upon the servant the right to do all necessary and proper acts for the protection and preservation of his property, to protect it against thieves and marauders; and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present.” In Mulligan v. New York & Rochaway Beach R. R. Co. (129 N. Y. 506) substantially the same question was presented, and it was there held that an agent was not acting within the scope of his authority in procuring the arrest of a person who had purchased a ticket from him with counterfeit money, and I cannot find that this rule has been qualified by subsequent decisions. It is not,what the servant “intended and believed to be for the interest of the master,” but what authoi’ity the master by the employment conferred upon the servant. However reprehensible the act of Tullís may have been, before a liability for such an act can be imposed upon the defendants, .it must be shown that they conferred such authority upon Tullís as would justify him in doing what he did as their agent, and that his acts were their acts and done in pursuance of some authority, either express or implied. There is no proof of any express authority, and I do not think there is anything tó justify a finding of an implied authority to cause the arrest of' a person in the public street after he has left the defendants’ premises.

McLaughlin, J., concurred.

Judgment and order affirmed, with costs.  