The result reached in the prevailing opinion is correct in all but the conclusion that a cause of action is not alleged as against the cigar company.
The amended complaint avers that the cigar company owned and operated, among others, the cigar store at 400 Union street; that it there operated an unlawful gambling game; that the store and the gambling game, were, and long had been, in the "sole charge of Daymude, as the agent, representative and employee of the cigar company."
Daymude, of course, was the original actor who started the train of events. The policeman and his gun *Page 475 are to be considered as his instrumentalities. His "hue and cry" were unfounded and unlawful. But the charge of the complaint, admitted by demurrer, making him the sole operator, agent, representative and employee, in sole charge of that particular business and gambling game of his principal, make the cigar company liable for his negligence and torts.
The rule is general 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, upon the principle of respondeat superior. Dupre v.Childs, 52 App. Div. 306, 65 N.Y. Supp. 179 (affirmed by court of appeals, 169 N.Y. 585), 62 N.E. 1095; Collins v. Butler,83 App. Div. 12, 81 N.Y. Supp. 1074; McCrory Stores Corporation v.Satchell, 148 Md. 279, 129 A. 348; Ayres Co. v. Harmon,56 Ind. App. 436, 104 N.E. 315; Dixon v. Haynes, 146 Wn. 163,262 P. 119; Netherlands American Mtg. Co. v. Eastern R. L.Co., 148 Wn. 249, 268 P. 604.
The law relating to liability of principal for acts of agent in wrongfully causing arrest and detention of another in the assumed furtherance of the principal's business, is entirely analogous. For the general rules controlling such liability, see 25 C.J. 502.
It is there stated, as an exception to the rule:
"The principal is exonerated in many instances, where the agent is not such a one as is intrusted with the care and custody of the principal's business and property, . . ."
which is not the alleged case here.
For these reasons, I dissent as to that part of the decision in favor of the cigar company.
TOLMAN and PARKER, JJ., concur with HOLCOMB, J. *Page 476