
    Cornelia Regg, Appellant, v. The Buckley-Newhall Company, Respondent.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Principal and agent—Rights and liabilities of principal as to third person — Unauthorized and tortious acts of agent (including apparent authority) — Liability for wrongs done by agent.
    Where a company engaged in selling articles of domestic use conditionally, payment therefor to be made in installments, employs an agent to collect installments of the purchase price of such articles upon such sales and gives him written instructions to commit no trespasses, to use no force and to engage in no disorderly conduct or incivility; but the agent, notwithstanding his instructions, in endeavoring to retake an article so sold upon default in payment by the. purchaser commits an assault upon her, the company is liable therefor.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the City Court of the city of Hew York, dismissing the plaintiff’s complaint.
    Girard S. Wittson, for appellant.
    Baker & Hyman (Sol. A. Hyman, of counsel), for respondent.
   Guy, J.

The plaintiff herein appeals from an order dismissing the complaint. The action was brought to recover damages for an alleged assault, committed by an agent of the defendant while engaged in removing and taking from the possession of the plaintiff a wash wringer which had been previously sold to plaintiff, to be paid for in installments, the title to remain in the seller until final payment was made. The plaintiff testified as to the assault, which was denied by defendant’s witness. Defendant then offered in evidence the written instructions issued by defendant to its agent (defendant’s exhibit 1), worded, in part, as follows: You are hereby required to collect the amount due on mortgage number 18663, upon which the sum of $2.25 is due and owing and unpaid. 'You will call and see the debtor or person named in the mortgage, and demand payment of this amount, and, if payment is not made, demand possession and delivery of the goods mentioned in the mortgage. If said goods can be repossessed by lawful means, and ivithout any interference with the rights of the mortgagor, you may repossess yourself of said goods for our benefit. You will please, however, observe the following directions.

1. You shall not force yourself into any premises where the goods are, nor shall you use any forcible means of entry, but you shall only repossess yourself of the said goods if you are permitted to enter the premises where same are.

2. You are not authorized, directed or empowered to commit any acts of assault upon any person in connection with the repossession of said goods and chattels, nor shall you engage in any disorderly conduct, or indulge in any force or incivility.”

At the close of the case defendant moved for a dismissal of the complaint on the ground that plaintiff had failed to show that the agent, Moreland, was, at the time of the alleged assault and in connection therewith, acting within the scope of his authority. The court reserved decision on the motion until after the submission of the case to the jury and the rendering of a verdict by the jury. The jury found a verdict in favor of the plaintiff for the sum of $250. Defendant moved to set aside the verdict, in which motion the plaintiff acquiesced on the ground of inadequacy. The court reserved decision on both the motion to dismiss and on the motion to set aside the verdict of the jury and subsequently granted the motion to dismiss, and from the order entered thereon this appeal is taken. "

For the purpose of this appeal the facts testified to by plaintiff as to the assault must be deemed to be true; and the sole question to be determined is whether the learned trial justice erred in dismissing the complaint on the ground 'that the agent, Moreland, in committing the alleged assault, was acting without" the scope of his authority. It appears from the evidence that defendant’s agent was permitted to enter the premises and was, therefore, admittedly there as the authorized agent of the defendant for the purpose of taking possession of the chattel for the benefit of the defendant; that he did remove the chattel, and it was subsequently delivered to and retained by the defendant. The trial justice evidently granted the motion to dismiss the complaint upon the theory that the directions to the agent that he should repossess himself of the chattel “by lawful means, and without any interference with the rights of the mortgagor,” and without committing any acts of assault, or engaging in any disorderly conduct, or indulging in any force or incivility, so limited the authority of the agent that the alleged assault, committed in disregard of said directions, was beyond the scope of his authority. This view of the law is not, however, sustained by the authorities.

“ The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.” Cosgrove v. Ogden, 49 N. Y. 257.

“ 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.” Mott v. Consumers’ Ice Co., 73 N. Y. 547.

“ Though injury and insult are acts in departure from the authority conferred, or implied, nevertheless, as they occur in the course of the employment, the master becomes responsible for the wrong committed.” Palmeri v. Manhattan R. Co., 133 N. Y. 266.

In O’Connell v. Samuel, 81 Hun, 360, the rule governing cases of this character is very clearly stated. “Although (the employee) 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.” See also Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129.

In Cullinan v. Burkard, 93 App. Div. 36, the same rule is enunciated. “A principal cannot exonerate himself from liability for the acts of his agent by showing that they were committed in violation of his instructions.”

The cases of McGrath v. Michaels, 80 App. Div. 458, and Weinstein v. Singer Mfg. Co., 121 id. 708, cited by the learned judge in his opinion accompanying the dismissal of the complaint, are not in point for the reason that in said cases the evidence failed to show any authority in the agent to repossess himself of the chattel for the benefit of the defendant, and the taking possession thereof was clearly beyond the scope of his authority. In the McGrath case, however, the court again laid down (p. 460), very clearly, the rule that should govern in this class of cases. “A master may be held responsible for the acts of his servant within the general scope of his employment while engaged in the master’s business, even though the servant’s act be negligent, wanton or willful.”

In this case, Moreland, the agent, was specifically authorized to enter the premises, if permitted to do so, and to repossess himself of the chattel for the benefit of the defendant. The defendant clothed him with the discretion of determining whether the means by which he repossessed himself of the chattel were “ lawful or without interference with the rights of the plaintiff.” Having vested its agent with this discretion, the agent’s acts in doing the thing he was directed to do were within the scope of his authority, and the defendant was not relieved from responsibility, therefore,, by his departure from his instructions as to the manner in which it was done. See Cosgrove v. Ogden, supra. Even -if the agent acted in direct violation of his instructions, as to the use- of force or the committing of an assault, the rule is the same. The master cannot avail himself of the benefits of his servant’s acts, as, in this case, by the retention of the chattels so taken possession of by the agent, and repudiate responsibility for the manner of the taking. It is evident, therefore, that the learned trial justice erred in granting the motion to dismiss the complaint. The jury having rendered a verdict for plaintiff, in utter disregard of the law of the case as stated in the court’s instructions to the jury, the verdict should not he reinstated, even though the court erred in its instructions as to the law.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabuby and Bijur, JJ., concur.

Judgment reversed.  