Young v. Mercantile Co. , 167 Miss. 409 ( 1933 )

I am unable to agree with the majority that there is no liability due appellant by the appellee because of the arrest made at the instance of the manager for the appellee. The very term "manager" implies that the person so selected and designated has the control of the business, and that is especially true when the principal is a nonresident of the state.

It is clear to my mind that a manger of a state business has authority to recover from an agent or salesman goods intrusted to such agent, and to take any legal steps calculated to recover such goods, and if a manager, in exercising this power, acts wrongfully, or uses a method which his principal has not authorized, nevertheless, the principal is liable for the manager's torts, if he was acting within the scope of his employment and was about his master's business.

It seems to me that the majority has misconceived the principle that, if the act was done by a manager in the company's interest, and to further a purpose of recovering the company's property, such manager is acting within the scope of his authority and was about his master's business, although the method he used was not authorized by the master and not approved by the master after it was done.

The manager considered that, when the salesman refused to deliver the goods on demand, he was subject to arrest and prosecution for embezzlement, and had such prosecution instituted with full knowledge of all facts. A prosecution of this kind is one of the most effective legal procedures to serve that purpose, and also to deter others from doing likewise. It is true that replevin, under the facts of the case before us, would have been an appropriate remedy. However, any person may resort to the criminal law for the purpose of taking goods from the possession of another, or to punish those who have violated the law in regard thereto.

The court below held that there was probable cause, and consequently there was no liability for the arrest. It did not place its decision upon the ground that the majority of this court now decides the case upon. As I understand the position of the majority, it did not think there was probable cause for making the arrest on the ground of embezzlement, but that the company is not liable because it was not within the scope of the manager's employment to do this thing.

If the manager was doing this thing in the protection of his master's business, calculated to coerce the salesman into surrendering the goods, then the company is liable for his act.

There are, perhaps, daily occurrences of arrest, not only to prevent a particular person from taking a particular article, but to deter all other persons from theft. Likewise, there are many prosecutions for embezzlement against employees, which are not instituted solely for the purpose of punishing the wrongdoer, but to deter others from so doing.

In Williams v. Planters Ins. Co., 57 Miss. 759, 34 Am. Rep. 494, it was held that a corporation may be held liable for a malicious prosecution conducted by its officers and agents just as if the corporation was a natural person. The same rule seems to be general upon this subject. In 34 C.J. 454, section 108, it is stated that: "While the contrary conclusion was reached in some of the earlier decisions, all of which have been overruled, either expressly or impliedly, it is now settled that a corporation may be liable for the malicious prosecution of a criminal action, instituted by its authorized agents, officers or servants in the carrying out of its policy, or in the furtherance of its business, although it may not have expressly authorized the act complained of or subsequently ratified it. In these circumstances, the malice of the agent or servant will be imputed to the corporation, and where the agent or servant acted within the general scope of his authority in instituting a prosecution, the corporation is liable for his acts, although in doing the particular act, he may have disobeyed instructions" — citing many authorities in the footnote to this text.

It seems to me that it is the very essence of justice to require such responsibility.

In Jacques v. Childs Dining Hall Co., 244 Mass. 438,138 N.E. 843, 26 A.L.R. 1329, it was held that, where a patron of a restaurant is detained for an unreasonable time pending an investigation as to whether or not he has paid his bill, such patron may recover damages for false imprisonment. See case notes to this opinion, page 1333 of 26 A.L.R.

In King v. I.C.R.R. Co., 69 Miss. 245, 10 So. 42, and Id.,69 Miss. 852, 13 So. 824, it was held that the railroad company was liable for the improper arrest of a person by its agent, although such agent had no express instructions to make arrests. It was also held in that case that the agent, notwithstanding his statutory authority to make such arrest, was, in reference thereto, the agent of the railroad company, and that his wrongful acts were attributed to the railroad company.

In England, the doctrine that the king could do no wrong long prevailed, but here this doctrine has long been discarded, and every person and corporation is responsible for its wrongs, and this principle is carried forward in section 24 of the Constitution of 1890, which provides that, "for an injury done him in his lands, goods, person, or reputation, [every person] shall have remedy by due course of law."

Of course, there could be no question about the liability of the manager, and section 24 of the Constitution would not apply to the case if the act of the manager was not within the scope of his authority. In this case, however, I am not able to see how it can be said that it was not within the master's business and within the scope of the manager's authority, for the reason that there would have been no arrest except for the purpose of protecting the master's business.

I do not believe in permitting any person to escape responsibility in the operation of his business where he selects an agent or manager for that purpose, giving with such selection full power to act about all matters pertaining to the business.

The cases relied upon in the majority opinion from this state were decided on the theory that the agents there involved were limited agents, and not agents with general authority. On their facts, they may not have been properly decided, but they certainly were decided on the theory that the agents therein had only limited authority and not general authority.

GRIFFITH, J., concurs in this dissent.