
    Louise Vergnes Stevens, Respondent, v. Hugh O'Neill, Appellant.
    
      False imprisonment — what constitutes restraint, compelling one to submit to be . searched — legal malice—punitive damages — error in a charge prejudicial to the respondent.
    
    In an action for false imprisonment, it appeared that a saleswoman in the defendant’s store, after showing the plaintiff some watches, counted them and said, “ there was so many in the case when I showed them to you; ‘now,’ * * * ‘ there is one missing;that the saleswoman then sent for the floor walker, and the latter called a woman detective, who said that the plaintiff would have to be searched; that the detective and a man then conducted the plaintiff between them through the store to the elevator and took her upstairs into a small room where she- was searched.
    
      Held, that the jury might properly find that the defendant’s employees exercised restraint upon the plaintiff; that the latter did not willingly submit to be searched, and that under the circumstances she was not required to" offer physical resistance to the attempt to search her;
    That the jury might properly infer legal malice from the occurrence itself;
    That as the act was done in pursuance of a system which had been adopted in the defendant’s store, punitive damages might be awarded to the plaintiff, although there was no evidence of any express malice against li.er.
    
      It seems, that it was error, for the court to charge that it was incumbent upon the plaintiff to prove that- there was an absence of probable cause for her detention, but the error, if any, is not available to the defendant as a ground for a new trial-.
    Appeal by the defendant, Hugh O’Neill, 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 18th day of November, 1899, upon the verdict of a jury for $3,000, and also from an order entered, in said clerk’s office on the 17th day of November, 1899,. as resettled by an order entered in said clerk’s office .on the 29th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward W. S. Johnston, for the appellant.
    
      Gilbert E. Hawes, for the respondent.
   Van Brunt, P. J.:

This action was brought to. recover damages for an alleged false imprisonment. The answer was in effect a general denial. The questions raised upon this appeal may be embraced within two classes: First, whether there was evidence enough to justify the jury in finding that there was any false imprisonment; and, second, whether there were any errors committed in the charge of the learned justice who tried the case.

It is claimed upon the part of the defendant that there was no evidence that any restraint was exercised by him or his employees as against the plaintiff, and that her submission to search was entirely voluntary upon her part. It appears from the evidence of the plaintiff that she visited the store of the defendant in the city of New York on the 15th of December, 1897; that she went to the jewelry counter and asked the salesgirl to' show her some watches. The girl showed her some which were very bright in color, and the plaintiff then asked if she had not some more subdued in character and the girl said, No. Then she counted the watches; she said there was so many in. the case when I showed them to you ; ‘ now,’ she says, there is one missing.’ ‘ Well,’ I said,' ‘ probably you have sold the watch,’ never thinking she thought I was the thief. Then she sent for the floorwalker and then he sent for the detective, and she said I would have to be searched.” The plaintiff repeated the testimony that when the woman detective came up she said: “ You will have to be searched; ” that then the detective sent for a man and they took the plaintiff through the store between this man and the detective to the elevator and went upstairs into a small room, where she was searched.

It is claimed upon the part of the appellant that the plaintiff asked to be searched upon the supposition that she was suspected of being the thief; and that she was willing and submitted to search for the purpose of clearing herself from suspicion, and that no restraint whatever was' exercised upon her by any of the employees of the defendant. /

It seems to us, when we consider the situation of the plaintiff, that she was in the store of the defendant, surrounded by persons who were employed by the defendant to detect crime, substantially accused of being a thief, and with the statement made to her you will have to be searched,” that this kvas the exercise of such a dominion over her that the jury might very properly find that restraint was exercised, and that the subsequent proceedings were simply carrying out the threat that they would search her. Under such circumstances the plaintiff certainly was not required to offer physical resistance to this un justifiable proceeding against her. The jury having resolved this question in her favor,"there seems to be no ground whatever for this court to interfere. The authority of the employees of the defendant is established beyond peradventure by the testimony of the defendant himself. ' These were the agencies employed by him for the protection, of his property; and these people, in the proceedings taken by them, were acting clearly within the scope of the authority which had been conferred upon them.

The next question we ar^ called upon to determine is whether the learned judge in his charge gave any erroneous directions to the jury, or refused any request to which the defendant was entitled.

The exception of the defendant to that portion of the charge, wherein it is stated that the plaintiff must prove that there was an absence of probable" cause for arrest, is clearly no ground for a new trial, because,.if the court was in error, as it probably was, in the proposition enunciated, it was placing an. additional burden upon the plaintiff and in no way operated injuriously to the defendant.

Equally immaterial.was the exception to that part of the charge which stated that false imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law,, and that it comprises two elements: First, the detention of the person, and, second, the unlawfulness of such detention. There, was no question of process in this case. It was a question of detention and of the unlawfulness of the detention, and that only; and the proposition excepted to was entirely immaterial and had no relation to the facts of .the case.

There was also an exception to the submission to the jury of any question of malice in the case. The. proposition of the court in that regard was entirely correct. The law imputes malice to an unlawful act. There qs undoubtedly a difference between malice which the law infers from the act itself, and malice which is the product of a proved mental operation. The court had the right to submit the question of malice in this case. Erom the very grossness of the act itself, maliceNmay he inferred. Here, without the slightest evidence that this plaitatiff was in any way connected with the disappearance of the watch \n question, it is proclaimed to her that she must be searched — in other words, she will have to submit to a search; and, surrounded as she was by the servants of the defendant, possessing authority to act,, she submits. It is .clear that from an act of this kind the jury.might infer legal malice.

There is also an exception to that part of the charge in which the court said that the defendant might be liable for acts of injury or insult on the part of any employee if they occurred in the course of the employment. It seems to be hardly necessary to discuss an exception of this character.

We now come to the requests to charge. There are a large number of these requests, which the court refused to charge further than he had already charged. Upon an examination of these requests, it will be seen that they are all embraced within one proposition, namely, that the plaintiff cannot recover unless she proves that she was detained. Various requests were made; among them that “the plaintiff has sworn that she went willingly to the room where she claims she was searched.” In regard to this proposition, it is apparent from the evidence that it was a question for the jury to determine whether the plaintiff was detained or not. The jury were not bound to find that she went willingly to the room to be searched, simply because she did not actually resist. She was surrounded by superior force, to contend against which was beyond her physical powers, and she had been told what she had to do, and she surrendered unconditionally; and that is all there is in the case as to her submission and willingness to be searched. The jury found such to be the facts, as they probably were. Under these circumstances the court was justified in refusing to charge such a request. The court had expressly charged that the claim against the defendant was for false arrest ánd imprisonment, and that the first question to be decided by the jury was whether there was an arrest. Then the court defines what false imprisonment is, namely, unlawful restraint of a person contrary to his will; and further charges the jury that if a person insists upon proving her innocence of an accusation expressed or implied, by exhibiting the contents of her pockets or her satchel, and goes voluntarily to a room for that purpose, the mere act of accompanying her there for such purpose by one or more persons would not constitute either arrest or imprisonment. Here was clearly placed before the jury the fact that there must be a detention against the will of the plaintiff in order that there might be a recovery. Under these circumstances it seems to me the court was entirely justified in refusing to charge further upon such a proposition. .

The exception to the refusal to charge that if the jury believed, as testified to by Hiss Cantwell, by Mr.' Carpenter, the officer, Han-non, and the other witnesses for the defendant, that she was at perfect liberty to leave the store at any moment they must find a verdict for the defendant is clearly untenable.' The other witnesses of the defendant did not swear to that effect; and it is a little doubtful whether the construction cf the evidence given by all the'witnesses named is of the character described in the proposition.

It is further urged that there, was no ground for awarding punitive damages;. in othér words, that there was no express malice proved and, therefore, no foundation for punitive damages. It will be seen, when we consider the nature ot punitive damages, that the case falls within the rule permitting them to be awarded. Punitive damages are given, not only as a punishment to' the defendant for a wrongful act, but also as a warning to others. Although there was no evidence of any express malice against this plaintiff individually, the act was done in pursuance of a system which had-been adopted in that store; and if this system was such as to place an innocent customer in the position in which the plaintiff’s evidence shows that she was placed, the jury had the right to say that the results of this system were of such a character as to require rebulce by way of punitive damages in order that innocent people should not be placed in the position which this plaintiff was placed without any fault upon her part.

The judgment and order should be' affirmed, with costs.

Bumsey, Ingraham and McLaughlin, J J., concurred.

' Judgment and order affirmed, with costs.  