
    Bridget Campbell, as Administratrix, etc., Resp’t, v. Charles Schlesinger, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. Civil damage act—Action for damages under—What will not constitute A GIFT WITHIN THE MEANING OF THE ACT.
    This action was brought under the so called civil damage act by a widow, and after her death continued by her administratrix, to recover damages of the owner of a hotel, for injury to her means of support. The husband of the intestate was a bartender of a hotel owned by the defendant. There were two bars in the building, one of which the husband of the intestate tended, and at which he frequently drank without the hotel-keeper’s knowledge. He also frequently drank at the other bar, obtaining the liquor from the bartender without the knowledge or authority of the employer. Held, that the hotel-keeper might know that his employee often gave away his property, yet that fact in itself did not make the employee his agent in the act of giving.
    2. Same—Is a penal act—Proper construction of.
    
      Held, that the statute was highly penal, and that in order to make the innocent owner of the premises liable in damages for acts of his tenants, which were licensed by law, it should be shown that the tenant sold or gave the liquor, not that he did not stop the pilfering of his employees.
    Appeal from a judgment entered upon the verdict of a jury in favor of Clara Dougherty, plaintiff, and against Charles Schlesinger, the defendant, and from an order denying a motion to set aside the verdict and grant a new trial.
    
      N. C. Hook, for appl’t; T. F. Hamilton, for resp’t.
   Learned, J.

This action was commenced by Clara Dougherty, widow of John Dougherty, to recover damages for injury to her means of support, under the so-called Civil Damage Act.” On her death after judgment, the plaintiff, her administratrix was substituted.

Dougherty was a bartender of a hotel, kept by one Clark, and owned by defendant There were two bars in the building one upstairs, the hotel bar; the other downstairs, the restaurant bar. Dougherty was the bartender upstairs. He frequently drank at his own bar, without Clark’s knowledge, and without paying. Sometimes after he had shut up the upper bar, he went to the lower and drank there, not paying for the liquors, but getting them from the other bartender without the authority or knowledge of Clark.

The learned justice charged that if the barkeeper under the hotel had been directed not to sell or give liquor to John Dougherty, and gave him whiskey, and John drank it, this was a giving within the statute.

The court also charged that if Clark knew that John was taking liquor there, and said nothing about it, and allowed that he might take it in such a way, the jury might find that this was giving it to him under the statute.

If a barkeeper, whose business it is to sell liquor, does this without the knowledge of his employer, still this is the employer’s act, because it is within the scope of the agent’s authority. But he has no authority to give away his employer’s liquor any more than to give away any other property of his employer. When he does give away his employer’s property, be it liquor or anything else, he is acting beyond the scope of his authority, and his act is not the act of his employer.

The clerk in a store, who gives away his employer’s goods, is not (unless special authority be shown) acting within his duty, and his act is not that of his employer.

Perhaps, to prevent any misapprehension, we should say that there may be cases in which, upon the grounds of negligence, an employer might be liable for injury caused by the gift of property entrusted to a clerk. But this is not one of those cases.

Though the employer may suspect that the clerk is pilfering from him, his neglect to discharge the clerk does not justify the clerk’s wrong doing or make him less liable to his employer therefor. Hence the mere knowledge by an employer that his property has been often given away by his employe, does not make the employe his agent in this act of giving. If an employe steals from his employer, certainly the employer does not give the stolen property. So, too, if the employe unlawfully converts the employer’s property. Nor would the act become a gift, or a sale, though the employer should afterwards charge the employe for the property. Kreiter v. Nichols, 28 Mich., 496.

The learned judge very property charged, that if a man has liquor, and trusts another man with it, and tells him, in good faith: You are not to touch one drop, and, notwithstanding, the man takes it and drinks; this is not a giving within the statute.

But he says that the plaintiff claims that Dougherty, during the time he was at Clark’s, was in a state of partial intoxication, and that Clark must have known that the liquor came from his premises. And it is in this view that the judge charged that if Clark knew that Dougherty was taking liquor, and said nothing about it, the jury might find that he was giving it to him within the statute.

Now we think that this was not correct. Of course, there are cases where acquiescence in the taking of property might be evidence of a gift; usually where the taking is in the presence of the owner, and he does not object. But here the alleged evidence of acquiescence is that Clark saw that Dougherty was intoxicated; a result subsequent^ to the taking; that would be evidence that he had obtained liquor somewhere and somehow. But it would be equally consistent with his having bought it of some one else, as with his having taken it without permission from Clark. Even if it were evidence that he had taken it from Clark, Clark’s subsequent silence would not make that a gift which was originally a trespass. We are dealing with a statute, harsh and penal, which makes one liable to damages for lawful acts committed by another who is not his agent. When the innocent owner of the premises is made liable in damages for acts of his tenant which are lawful and licensed by law, the proof of such acts should be distinct. It should be shown that the tenant sold or gave, not that he did not stop the pilfering of his employees.

Of course there may be cases where a gift of liquor, as of any other property, might be inferred from circumstances without any direct words of gift. But if one discovers that his employee has stolen from him, such discovery does not turn the theft into a gift, and if he afterwards continues the employee in the same position, he does not thereby give the employee whatever he may thereafter choose to take.

The plaintiff was allowed to prove, under defendant’s objection, that Clark bought liquors from defendant,’ and owed him for a part, and owed him for rent. This evidence might be material to show defendant’s knowledge that' liquors were to be and were sold at the hotel. But this had been admitted by the answer.

The plaintiff claims that this evidence was proper in cross-examination, to show the business relations of the witness to the defendant. The extent to which such cross-examination may go must be largely within the discretion of the trial judge, and we cannot say that this discretion was abused in this case. Some other questions are presented which it is unnecessary to consider.

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

Landon and Ingalls, JJ., concur.  