
    Walter S. Craven, Respondent, v. Lyman G. Bloomingdale, Doing Business under the Firm Name of Bloomingdale Brothers, Appellant.
    
      Jbise imprisonment — liability of the master where an an'ticle, marked by mistake “ G. O. D.,” is delivered by the driver of a delivery wagon, who causes the arrest of the purchaser for refusing to return the article or pay the pi'ice—punitive damages.
    
    In an action to recover damages for an alleged false imprisonment, it appeared that the plaintiff purchased an oven at the defendant’s department store which proved to he unsatisfactory, and that she returned it upon the defendant’s agreement to deliver another in its place upon the payment of the difference in value between the two ovens; that through the mistake of some one in the defendant’s employ, the substituted oven was marked “ C. O. D.” and that when the driver of the defendant’s delivery wagon delivered the oven to the plaintiff he demanded the full price thereof; that the plaintiff claimed his right to the possession of the oven on payment of the difference in value, and that the driver insisted upon payment of the full price or the return of the oven; that the plaintiff refused to accede to the demand, and that the driver, for the purpose of enforcing such demand, called in a police officer and charged the plaintiff with theft, upon which the officer arrested the plaintiff without a warrant.
    It further appeared that by a .rule of the defendant’s establishment goods sent “ 0. O.'D.” were charged to the driver of the delivery wagon, and that if he did not return the goods or the price thereof, their value was charged to him personally.
    
      Held, that the arrest was illegal;
    That in procuring it the driver acted in his master’s business and within the general scope of his authority, and that the defendant was liable for the damages resulting therefrom;
    That punitive damages might be awarded in the discretion of the jury.
    Appeal by the defendant, Lyman G. Bloomingdale, doing business under the firm name of Bloomingdale Brothers, 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 15th day of March, 1900, upon the verdict of a jury for $1,250, and also from an •order entered in said clerk’s office on the 9th day of March, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Otto Horwitz, for the appellant.
    
      John W. Brainsby, for the respondent.
   Patterson, J.:

On the trial of an action brought to recover damages for false ■imprisonment the plaintiff had a verdict, and from the judgment •entered thereon and from an order denying a motion for a new trial the defendant appeals.

The plaintiff was arrested by a policeman at the instigation of a •driver in the employ of the defendant, was taken before a police magistrate who seems to have inquired into the cause of the arrest and then discharged the plaintiff. The facts constituting the cause of action and proven are, in brief, the following: The defendant, the proprietor of a large department store in the city of New York, sold to the plaintiff’s wife a small gas stove and an oven which were paid for. Finding the oven to be unsatisfactory it. was returned to the defendant, who agreed to furnish another in its place, the difference in value of a few cents tó be paid by the purchaser. After-much delay the defendant sent to the plaintiff’s apartment the oven to be substituted, but instead of giving instructions to deliver it upon payment of the few cents due, the article was marked <[ C. O. D.,” which, it is agreed, means that the full value of the oven should be collected on its delivery or the article be brought back to the seller by the person intrusted with it for delivery to the purchaser. The article thus marked was given to one Blaut, a driver in the defendant’s employ, who took it to the house in which the plaintiff’s family resided, and a young lad there delivered it into the possession of the plaintiff or his wife and demanded the value •or price as marked upon the merchandise. The plaintiff and his wife stated their claim of right to the possession of the oven and ■offered to- pay the amount due the defendant; thereupon the lad returned to the driver, who went to the plaintiff’s apartment, demanded the full price or the return of the oven, and the plaintiff or his wife again stated their claim to the possession of the article and offered the few cents difference above referred to. The driver .still insisted upon his demand of the money or the return of the merchandise, and the plaintiff refusing either, the driver went in pursuit of a policeman, brought him to the plaintiff’s apartment, and there, in substance, charged the plaintiff with the theft of the oven. Upon such charge being made, the plaintiff was arrested and taken before a police magistrate with the result above mentioned.

It is not denied that the plaintiff’s claim of right to the oven upon payment of the few cents was well founded, and it is quite evident that sending the goods marked “ O. O. D.” was a mistake of some one in the employ of the defendant; nor is it denied that the driver had full authority to require payment of the marked price of the oven or to take it back to his employer; nor is it claimed that the plaintiff was taken into custody under the authority of' a warrant, or that a warrant of arrest was ever issued.

It appears in evidence that when goods were sent o.ut by the defendant marked “O. O. D.” théy were charged to the driver, and that if the driver did not return the article or the price thereof its-value was charged personally to him, and a written contract to that effect,'signed by Blaut, was read in evidence.

That the arrest of the plaintiff was illegal is plain. The police officer had no warrant, and he could make an arrest without one only for a crime committed or attempted in his presence, or where a person had committed a felony, although not in his presence,, or where a felony had in fact been committed and he believed the person to be arrested to have committed it; (Code Crim. Proc. § 177.) There is no evidence in this case of the commission of a felony,- but quite the contrary.

The underlying -question to be- considered is the responsibility of the defendant for the act of the driver in causing the arrest. The test of the responsibility is not that the agent should be expressly authorized to do the particular act, or that authority should be expressly conferred, but whether the agent was1 engaged in his master’s business and acted within the general scope of his authority. In Mott v. Consumers' Ice Co. (73 N. Y. 547) the court, in considering the general principle by which the liability of a master to respond for the consequences of the wrongful acts of his servants is tested, says: “ The rule recognized in all the recent cases, and which does not materially conflict with any of the older decisions, * "x" * is that 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.” In Lynch v. Metropolitan El. R. Co. (90 N. Y. 77), which was an action for false imprisonment against a principal, the court said: “ It matters not that he (the servant) exceeded the powers conferred upon him by his principal, and that he did an act which the principal was not authorized to do, so long as he acted in the line of his duty, or, being engaged in the service of the defendant, attempted to perform a duty pertaining, or which he believed to pertain, to that service. He detained the plaintiff at the station, caused his arrest, went with the police officer to the police station, there made a complaint, and then the next morning appeared before the police magistrate and renewed his complaint. These were successive steps taken by the gatekeeper (the defendant’s servant) to enforce the payment of the fare by the plaintiff or to punish him for refusing to pay it, and for all that he did the defendant is responsible.”

Mali v. Lord (39 N. Y. 381) and other cases in which persons have been detained by employees of shopkeepers upon suspicion of shoplifting, are quite distinguishable from the present case, In Palmeri v. Manhattan Railway Co. (133 N. Y. 266) the court says : “ There is no parallel between the case of a clerk in a store, who has a person arrested and searched, upon suspicion of a theft, and whose general employment could not warrant such an act, and the present case of an agent, who is considered to be invested by the carrier with a discretion and a duty in matters of his employment, from which an authority is inferable.to do whatever is necessary about it.” In the case before us the goods were delivered to the driver under such circumstances as authorized him not only to protect the property of his master, but to do Avhat he believed to be his duty to- his principal with reference to that property, and Ave think the case falls directly Avithin the rulings in Lynch v. Metropolitan El. R. Co. (supra). The acts of Blaut were quite similar to those committed by the servant of the railroad company in the case last cited, with an unimportant exception. According to Blaut’s own testimony the arrest was made and the charge preferred in order to get back the merchandise, and the substance of the charge was a theft. It would scarcely be disputed that if this article had been taken from the wagon while in charge of Blaut an arrest caused by him of the person taking it would have been an act performed in the course of his duty to his employer for the' protection of the employer’s property ; and the character of the act in this case does not differ materially from that in the case supposed, although Blaut swears that he stated to the plaintiff, “ I have,got to have the stove or the money because I am held responsible for it.” The legal quality • of his act. does not depend upon his assertion, but upon his relation to his master. It is quite evident that he believed it to be his duty to cause the arrest, and his master placed him in charge of the merchandise under such circumstances as would authorize an implication of authority to do what was proper or necessary in the exercise of his judgment to protect the property intrusted to him.

The fact that his employer required from him upon his entering on the employment an agreement that he would be responsible for any merchandise which might be lost, destroyed or stolen after-being placed in his charge, does not .affect the question. That was-simply an additional security to the employer.

It is urged that the complaint should have been dismissed because: of its insufficiency in setting forth the cause of action for false: imprisonment. It was averred in the complaint that the defendant: without any right or authority so to do and against the will of the plaintiff caused the plaintiff’s .arrest. If the complaint were defective in that regard, it was cured by an amendment allowed at the close of the plaintiff’s case, which permitted the insertion in the complaint of the wrords, “ without a warrant and without authority of law.”. We think this amendment was properly allowed, as the cause of action was in reality not changed.

It is further claimed that the court erred in charging the jury that they might award punitive damages to the plaintiff and in refusing a request to charge that punitive damages could not be allowed. In actions for false imprisonment a jury may award such damages within its discretion. (Voltz v. Blackmar, 64 N. Y. 440; Stevens v. O'Neill, 51 App. Div. 364.) The charge of the trial judge upon this subject was not erroneous, and .upon an examination of the whole case we cannot say that the amount of the verdict was excessive.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment and order affirmed, with costs.  