#### C. L. HAMMOND v. ECKERD’S OF ASHEVILLE, INC.

(Filed 7 January, 1942.)

1. Master and Servant § 21b: Principal and Agent § 10a—

In determining- tbe liability of a principal or master for injury to third persons, tbe intent of the agent or servant to benefit the employer or pi-otect his property is not relevant, the criteria being whether the agent or servant inflicted the injury while acting in the course of his employment or scope of his authority, express or implied, in which event the superior is liable for malicious injury, including false arrest, imprisonment, and slander, as well as injuries negligently inflicted.

2. Same — Evidence held to show that acts of clerk in causing arrest and search of customer and in accusing customer of theft were outside the scope of his authority, express or implied.

Plaintiff’s evidence tended to show that plaintiff was a customer in defendant’s store, that after purchasing merchandise and while leaving the store he heard the tobacco clerk repeatedly call “wait a minute,” that he did not think the clerk was speaking to him and left the store, that the clerk followed him outside the store and, by asserting that plaintiff had stolen two cigars, caused a policeman to arrest and search plaintiff while he was standing on the sidewalk. Held,: The act of the clerk in pursuing plaintiff out of the store after the supposed theft had been completed, and in causing the arrest and search of plaintiff, was outside *597tile scope of the clerk’s authority, express or implied, and judgment as of nonsuit was properly entered upon motion of the employer in an action against it for assault, false arrest and slander.

Seawell, J., dissenting.

ClaRkson, J., concurs in dissent.

Appeal by plaintiff from Johnston, Special Judge, at Special March Term, 1941, of Buitcombe.

Civil action to recover for alleged assault, false arrest, and slander.

In the pleadings it is admitted that defendant is a corporation, existing under the laws of the State of North Carolina, with its principal office and place of business in the city of Asheville, in Buncombe County, in said State, where it conducts a general drug business on Patton Avenue; and that on 5 July, 1940, Bichard E. Young, Jr., who is “the son of Bichard E. Young, who is the sole manager of defendant corporation in so far as the conduct and operation of its business in said city . . . is concerned,” “was in the employ of the defendant.”

Plaintiff, further in his complaint, makes substantially these allegations : (1) That Bichard E. Young, Jr., is a duly qualified agent, servant and employee of defendant, and “at times . . . hereinafter complained of was the clerk in charge of the cigar and tobacco counter in the defendant’s drug store, and was at said times acting within the scope of his employment and in the furtherance of his master’s business; (2) that on 5 July, 1940, as he, the plaintiff, “was in the act of leaving the store of defendant” which he had entered for the purpose of purchasing certain medicine, as was his custom over a period of years, Bichard E. Young, Jr., “agent, servant and employee of defendant” as “clerk in charge of the cigar and tobacco counter in the defendant’s drug store,” “called out to him in a loud and angry tone of voice, ordering this plaintiff to halt and return and put down the cigars which the said Bichard E. Young, Jr., . . . accused this plaintiff of having stolen from the cigar counter”; (3) that though plaintiff heard the words of said Bichard E. Young, Jr., knowing that he was innocent of any guilt in connection with the larceny of defendant’s property, continuing on his way, proceeded out of the store in the direction of the sidewalk on north side of Patton Avenue, but before reaching the sidewalk- — “defendant, through its said agent, servant and employee” rudely seized this plaintiff’s arm and stopped him, within the well lighted front areaway of defendant’s storeroom, and thereupon directly accused the plaintiff of stealing two cigars from the defendant’s cigar counter; (4) that plaintiff, still knowing and realizing his innocence, “advised Bichard E. Young, Jr., . . . that he had not stolen any of the defendant’s property and shook loose the restraining arm of the said Bichard E. Young, Jr., and proceeded on and out of the store,”» and, when he was immediately in front of and *598across the street from Imperial Theatre, be beard someone, wbom be believes to be Richard E. Young, Jr., cry out to a policeman “Stop that man, be has stolen cigars from Eckerd’s”; (5) that pursuant thereto, “a police officer of the city of Asheville stopped plaintiff, and in just a moment” said “Richard E. Young, Jr., came upon the scene” and “demanded that the officer search this plaintiff . . . because plaintiff had stolen two cigars from the defendant”; (6) that after admonishing said Young, Jr., to be certain of his accusation, and after said Young, Jr., had reasserted that he was certain and had again demanded the search, “the said police officer subjected this plaintiff to a humiliating, embarrassing and entirely unnecessary search, and as a result of said search found no cigars of any nature or character whatsoever on the person, or in the clothing of this plaintiff”; (7) and that as a result plaintiff has suffered injury and damage in manner and amount set forth.

Defendant, in answer filed, denies the material allegations of the complaint, and as further defenses, inter alia, avers an express denial (1) that Richard E. Young, Jr., or any other person, while in the employ of defendant, and while acting within the scope of his or her authority, made any statements malicious or with any feeling to or about the said plaintiff; or (2) that th’is defendant, or anyone acting in its behalf, arrested plaintiff or caused him to be arrested. Defendant further avers (a) that such detention of plaintiff, as there may have been, was caused by an officer attached to the police department of the city of Asheville, for whose acts defendant is nowise liable; and (b) that such acts and statements of the said R. E. Young, Jr., of, toward, about and concerning plaintiff were contrary to defendant’s policy and positive instruction, to wit, never to accuse or cause the arrest of any person on a charge of theft in or about defendant’s retail establishment, and that such acts and statements of said Young, as alleged in this complaint, were and are outside the scope of his authority.

In the trial court, plaintiff as a witness for himself, describes the occurrence in this manner: “I was in their store in Asheville on July 5, 1940, ... to purchase medicine ... I bought and paid for the medicine . . . After I purchased the medicine and it was delivered to me, along with the cash register slip, I came out of the store. Before I got on the sidewalk I heard somebody say, ‘Wait a minute.’ It was the clerk behind the cigar counter who said that to me. . . . When that young man said that to me, I did not wait, but went on down the street. I did not stop because I did not think he was speaking to me. As I came out I heard another voice behind me say, 'Wait a minute.’ It was the man behind the counter, that young man over there that I just identified (R. E. Young, Jr.). I did not wait at that moment, as I just explained to you, but continued to walk on. Just before I did *599stop, tbe police said, ‘You are wanted in tbe drug store’ . . . Well, I stopped and tben tbe young man from tbe drug store said to put back tbe cigars tbat I bad taken ... I am talking about tbat young man wbo was tbe person behind tbe counter ... I said to him tbat I bad not taken any cigars off tbe counter. Tbe young man said to put back tbe cigars tbat I bad taken off tbe counter. He said, ‘a couple of cigars,’ and I said tbat I bad not taken any and tbat I didn’t even smoke cigars. He said, ‘Ob, yes, you have.’ He said tbat tbe cigar box was on tbe counter near where I was standing and tbat I did take them. Tben tbe police asked him if be was sure tbat I bad taken tbe cigars. Tbe young man said, ‘Yes, go ahead and search him.’ I was tben searched. This took place I guess about ten or twenty feet maybe from the drug company — from its entrance. I was on tbe street. I was across tbe street from tbe picture show on tbe same side of tbe drug store. It was about 9 :10 o’clock at night. Lights were on in tbe store windows along tbe street. People were standing out in front of tbe drug company . . . After I bad been searched by tbe policeman with Mr. Young’s assistance, they did not find any cigars on me. I bad not taken any cigars . . . tbe policeman was in uniform ... I was acquainted with one of tbe clerks in there . . . He was on duty tbat night . . . He bad nothing to do and took no part in this occurrence on tbe sidewalk. After tbe occurrence on tbe sidewalk, this young man over there (indicating R. E. Young, Jr.) wanted to shake bands with me . . . He said tbat be was sorry tbat be bad made a mistake and begged my pardon.”

Tben, on cross-examination, plaintiff further testified: “I went to tbe store about ten minutes past nine. Was in there about three minutes . . . I went in tbe front of tbe store. I got tbe medicine about middleways of tbe store. Tbe cigar stand is up at tbe front. I spoke with tbe man tbat I got tbe medicine from, Mr. Weidle, but nobody else . . . This young man (indicating Mr. Young, Jr.) was tbe one wbo was selling cigars ... I have seen him more times than one at tbe cigar stand. He sells cigars there behind tbe cigar stand. When I started out I walked by tbe cigar stand. After I passed I beard him speak. He asked me to wait a minute. I did not stop. I went out and be called again and asked me to wait. I stepped on tbe outside and went west towards Pritchard Park. Tben I beard him speaking again, asking me to stop. Tbe policeman spoke to me first before I stopped. I bad beard it before, but I did not stop and did not pay any attention to it. It was tbe same voice tbat I beard inside tbe store. It was tbe same voice as I come out and tbe same voice as I got outside. Tbe policeman told me tbat somebody wanted to speak to me. Tbat was what called my attention to it. When tbe policeman spoke to me . . . *600I turned and saw that be was the one . . . He also told me that tbe box was full as I passed and that after I passed there were two cigars gone. Tes, I told him that he could search me . . . When he said that he was sorry he made this mistake, he shook hands with me . . . each of us went his way. I went home. I cannot say whether he went to the store or not. I did not know anybody else on the street besides the policeman . . . Outside of the boy who came from the drug store, I did not see anybody speak to the policeman. Nobody else spoke to this boy who was selling the cigars except myself and the policeman. ... I have told everything that happened there . . . My sister was the first person I told about having this talk on the street with this boy.”

The police officer, John E. Cutsill, also as witness for plaintiff, testified : “I was going east on Patton Avenue and walking by the drug store. I noticed a man running (as later corrected — ‘walking pretty fast’) out of the drug store and one of the clerks come out behind him, hollering at him, asking him to stop. I finally stopped the man myself. The clerk (indicating Young, Jr.) said that this man had picked up two cigars . . . The clerk said that he had a couple of his cigars and I asked him if he was sure that he had them, and he said ‘Yes,’ and I went ahead and searched^him and I didn’t find them. At that time I was in uniform.”

Prom judgment as of nonsuit at close of plaintiff’s evidence, plaintiff appeals to Supreme Court, and assigns error.

H. Kenneth Lee for plaintiff, appellant.

Chas. G. Lee, Jr., for defendant, appellee.

WiNBORNE, J.

This is the question for decision: Was Richard E. Young, Jr., in pursuing plaintiff as he left the Asheville store of defendant, and, while upon a public street, in charging him with larceny of two cigars from the cigar stand in the store, and in causing him to be searched by a city police officer, acting within the line of his duty and exercising the functions of his employment as clerk at the said cigar stand ?

In keeping with old principles, about which much has been written, the answer is “No.”

The principle is well established that when the relationship of master and servant exists the master is liable for the acts of his servant, whether negligent or malicious, which result in inj’ury to third persons when the “servant is acting within the line of his duty and exercising the functions of his employment.” Roberts v. R. R., 143 N. C., 176, 55 S. E., 509, 8 L. R. A. (N. S.), 298, 10 Ann. Cas., 375; Willis v. R. R., 120 N. C., *601 508, 26 S. E., 784; Daniel v. R. R., 136 N. C., 517, 48 S. E., 816, 67 L. R. A., 455, 1 Ann. Cas., 718; Sawyer v. R. R., 142 N. C., 1, 54 S. E., 793, 115 Am. St. Rep., 716, 9 Ann. Cas., 440; Marlowe v. Bland, 154 N. C., 140, 69 S. E., 752, 47 L. R. A. (N. S.), 1116; Cotton v. Fisheries Products Co., 177 N. C., 56, 97 S. E., 712; Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32; Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446; Lamm v. Charles Stores Co., 201 N. C., 134, 159 S. E., 444, 77 A. L. R., 923; Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817; Snow v. DeButts, 212 N. C., 120, 193 S. E., 224; West v. Woolworth Co., 215 N. C., 211, 1 S. E. (2d), 546; D’Armour v. Hardware Co., 217 N. C., 568, 9 S. E. (2d), 12. In Lamm v. Charles Stores Co., supra, Brogden, J., groups tbe lines of cases involving liability, and nonliability.

“Tbe simple test,” as stated in Sawyer v. R. R., supra, quoting from Wood on Master and Servant, section 307, “is wbetber they were acts witbin tbe scope of bis employment; not wbetber they were done while prosecuting tbe master’s business but wbetber tbey were done by tbe servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred, but wbetber tbe act was such as was incident to tbe performance of tbe duties entrusted to him by tbe master, even though in opposition to bis express or positive orders.” Roberts v. R. R., supra; Cooper v. R. R., 170 N. C., 490, 87 S. E., 322; Dickerson v. Refining Co., supra.

Tbe liability of tbe master does not depend upon tbe motive of tbe servant, such as bis intent to benefit tbe employer or to protect bis property, but upon tbe question wbetber in tbe performance of tbe act which gave rise to tbe injury tbe servant was, at tbe time, engaged in tbe service of bis employer. Kelly v. Shoe Co., supra; Dickerson v. Refining Co., supra.

In Daniel v. R. R., supra, a case in which plaintiff was arrested and searched for money which agent of defendant suspected be bad stolen, Walker, J., stated that tbe general rule is that “when an agency is created for a specified purpose or in order to transact particular business,-tbe agent’s authority, by implication, embraces tbe appropriate means and power to accomplish tbe desired end. He has not only tbe authority which is expressly given but such as is necessarily implied from tbe nature of tbe employment ... A servant entrusted with bis master’s goods may do what is necessary to preserve and protect them, because bis authority to do so is clearly implied in tbe nature of tbe service, but when tbe property has been taken from bis custody or stolen and tbe crime has already been committed, it cannot be said that a criminal prosecution is necessary for its preservation or protection. *602This may lead to tbe punishment of tbe tbief or tbe trespasser, but it certainly will not restore tbe property or tend in any degree to preserve or protect it. It is an act clearly without tbe scope of tbe agency and cannot possibly be brought within tbe limits of implied authority of tbe agent.”

And in Willis v. R. R., supra, tbe Court also quoting from Wood on Master and Servant, 546, appropriately said: “ ‘In tbe absence of express orders to do an act, in order to render tbe master liable, tbe act must not only be tbe one that pertains to tbe business, but must also be fairly within tbe scope of tbe authority conferred by tbe employment.’ ” And, Faircloth, J., writing for tbe Court, continues: “For illustration, a clerk to sell goods suspects that goods have been stolen and causes an arrest to be made. Tbe master is not liable for tbe imprisonment or for tbe assault, because tbe arrest was an act which tbe clerk bad no authority to do for tbe master, either express or implied.” This is quoted with approval in Daniel v. R. R., supra, and in Parrish v. Mfg. Co., supra.

Tbe general principle that a master or principal is not liable for tbe tortious act of bis servant or agent unless tbe act be done by an authority, either express or implied, given him for that purpose by tbe master, applies to action for false arrest or imprisonment. 35 A. L. R., 645. Annotation (b).

Tbe principle also extends to actions for slander when tbe defamatory words are uttered by tbe express authority of tbe master or within tbe course and scope of tbe agent’s employment. Cotton v. Fisheries Products Co., supra; Sawyer v. Gilmer’s, 189 N. C., 7, 126 S. E., 183; Oates v. Bank, 205 N. C., 14, 169 S. E., 869; Vincent v. Powell, 215 N. C., 336, 1 S. E. (2d), 826. Yet, in connection therewith, Ilolce, J., writing in tbe case of Cotton v. Fisheries Products Co., supra, observes that: “Owing to .the facility and thoughtless way that such words are not infrequently used by employees, they should not perhaps be imputed to tbe company as readily as in more deliberate circumstances — that is, they should not be so readily considered as being within tbe scope of an agent’s employment; but tbe basic principle is recognized and may be applicable, whenever, as stated, tbe slander has been expressly authorized by tbe company, or when tbe defamatory words have been used in tbe course of tbe agent’s employment and authority for their utterance may be fairly and reasonably inferred,” citing authorities.

Applying these principles to tbe ease in band, it is manifest that tbe employment of Richard E. Young, Jr., carried no implied authority to go out of tbe store and prefer charges against, and cause tbe search of a third party, as attributed to him. It is admitted in tbe pleadings that his father, Richard E. Young, was at tbe time tbe sole manager of tbe defendant’s store. Where be was. tbe evidence fails to disclose. If *603another bad control of tbe store, tbe record is silent. On tbe other band, tbe evidence tends only to show that Bichard, Jr., was employed as a mere clerk behind tbe cigar stand, and that be sold cigars. Furthermore, if tbe custody of tbe cigars were under bis control and, if bis suspicion bad been well founded, tbe cigars bad already been stolen, and passed from bis possession and out of tbe store. Under such circumstances tbe defamatory language used and tbe acts committed, while outside tbe store, and bn tbe street, are clearly without tbe scope of bis employment, and cannot possibly be brought within tbe limits of implied authority of an agent.

Tbe judgment below is

Affirmed.

Seawell, J.,

dissenting: As to tbe rule that an employer is liable for tbe negligent or malicious conduct of an employee acting within tbe scope of bis authority there is no room for disagreement. But as to bow far tbe rule of respondeat superior may be extended to cover nonnegligent torts of tbe employee is a question that has afforded room for differences of opinion. Tbe relation between tbe tortious act and tbe scope of employment may not always be so clearly seen; and yet I know of no class of cases in which tbe injury is more worthy of redress, where liability exists, since it is apt to be inflicted under circumstances of oppression and aggravation which ordinarily do not exist.

To my thinking tbe sole question involved in this case is whether tbe conduct of Young, employee, may reasonably be attributed to tbe protection of bis employer’s property from theft or to a vindication of tbe law and punishment of a thief. Daniel v. R. R., 136 N. C., 517, 48 S. E., 816; Lamm v. Charles Stores Co., 201 N. C., 134, 159 S. E., 444; Long v. Eagle Store Co., 214 N. C., 146, 198 S. E., 573. If tbe former, tbe case should have been submitted to tbe jury; if tbe latter, nonsuit was proper. If there was a doubt, it was one which tbe jury alone could resolve.

In my opinion, tbe whole transaction was susceptible to tbe inference that Young acted throughout in a reasonable, though mistaken, intent to protect tbe property from theft or to recover it from the thief. Tbe plaintiff was a customer in defendant’s store. Tbe employee was a salesman in tbe store in charge of tbe cigar counter and charged with tbe duty of making sales of cigars therefrom. He was in charge of tbe merchandise so offered for sale, at least to tbe extent of protecting bis employer’s property from theft. It cannot be supposed that an attempt to protect tbe property and to recover tbe same immediately from tbe thief and prevent bis escaping with it was outside of bis line of duty. It was in tbe attempted performance of this duty be made tbe accusation *604of tbeft against the plaintiff and caused him to be detained for search and actually searched in a public place immediately outside the store by a policeman.

Decision here is made to turn upon Daniel v. R. R., supra. In that case the plaintiff was arrested upon a telephone call made by an employee of the railroad from Greenville to Kinston, and at a hotel in Kinston the plaintiff was arrested because of a supposed theft of money in Greenville. The case was decided on the principle announced by Blackburn, J., in Allen v. R. R., L. R., 6 Q. B., 65: “There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property; it is done merely for the purpose of vindicating justice.”

The same distinction is made in Lamm v. Charles Stores Co., supra, where the arrest was made at the instance of an employee three months after the supposed theft. In Long v. Eagle Store Co., supra, where the factual situation was practically identical with that in the case at bar (the detention and search of the plaintiff in that case was outside the store), the Court said: “But in this case we do not have to go that far in order to attach liability to his employer for the conduct of Senter. The arrest of the plaintiff at the instance of defendant’s assistant manager, and a search of his person for an article just acquired and still in his possession, in the immediate presence and at the instance of Senter, must be regarded as one continuous transaction, insulated by neither time nor circumstance from a valid inference which the jury might draw that the conduct of the assistant manager was directed, mistakenly as it proved, to the immediate protection of his employer’s property against theft and its recovery from the thief, and that his action was well within the scope of his authority. Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32; Berry v. R. R., 155 N. C., 287, 71 S. E., 322; Brockwell v. Telegraph Co., 205 N. C., 474, 171 S. E., 784.”

In the case at bar the employee was in hot pursuit of the supposed thief. He had practically raised a hue and cry. His avowed purpose was to recover the property, and both his accusation of theft and the detention at his instance by an officer of the law were within that purpose and therefore within the scope of his employment and in the mistaken exercise of what appeared to be an immediate duty.

A few seconds time and a few feet of space did not destroy the inte-grality and continuity of the transaction. The mantle of authority, if *605be ever bad it, did not drop from bis shoulders eo instanti wben be raced across tbe threshold of the store. The accusation of theft and the detention and search of the plaintiff were within the res gestee.

The case should have gone to the jury.

ClaeKSON, J., concurs in dissent.