Veneruso v. Spear & Co.

Scott, J. (dissenting):

The defendant, a corporation, is engaged in the business of selling furniture, a large part of its business being conducted on what is known as the installment plan. On July 27, 1911, one of defendant’s collectors, accompanied by a driver and helper, called at plaintiff’s house to collect an installment due upon a sideboard which had been purchased by plaintiff’s brother-in-law. As to what took place the witnesses differ. The plaintiff’s story, supported by her mother and niece, is that defendant’s collector, who has since died, insisted upon examining a sideboard standing in her dining room, to see whether or not it bore defendant’s mark; that plaintiff refused to allow him to do so, whereupon he assaulted her. The defendant’s employees who were present contradicted this and assert that no assault whatever took place. On this issue the jury found in plaintiff’s favor, and we see no reason for disturbing their finding. Nor are the damages awarded excessive if plaintiff was injured as she says that she was.

The sole question in the case is whether or not defendant is responsible for the assault committed by its servants, and this depends upon whether or not the servants were acting within the scope of their duty. The evidence of the defendant’s manager in charge of collections, and that of the driver’s helper, was that defendant’s collectors were always instructed merely to ask for payment, and if payment was not forthcoming to request a return of the goods, but that if the customer refused to give up the goods the collector was instructed to leave the premises at once, and under no circumstances to use force. They were also instructed that they must not take away goods without the consent of the customer. It was testified that if, as in the nresent case, the goods were found in the possession *634of a third person the collector was instructed to make no effort to take away the goods, but to report the fact to the office. This evidence could not of course be contradicted by plaintiff, who was in no position to know what instructions defendant gave its servants, but that is no reason for rejecting it, nor is there any other apparent reason unless a suspicion that it may not be true would justify disregarding it, and even for such a suspicion there is no ground disclosed in the case. Assuming then that the evidence as to the instructions given to the collector is worthy of belief, it is clear that in assaulting plaintiff the collector acted without the scope of his duty and authority, and the defendant is not liable for the assault. This is the rule that has been invariably applied in like cases in this State. (Meehan v. Morewood, 52 Hun, 566; affd. on op. below, 126 N. Y. 667; Feneran v. Singer Mfg. Co., 20 App. Div. 574; McGrath v. Michaels, 80 id. 458; Weinstein v. Singer Mfg. Co., 121 id. 708; Murphy v. Newhall Co., 151 id. 520.)

The respondent cites to us a number of cases as establishing a different rule. (Levi v. Brooks, 121 Mass. 501; McClung v. Dearborne, 134 Penn. St. 396; Peddie v. Gally, 109 App. Div. 178; O’Connell v. Samuel, 81 Hun, 357.) No one of these cases, however, is applicable to the present, for in each one of them the determining fact was that the employee for whose tort the employer was held to be liable had been instructed to take away the goods, and it was in the effort to carry out this instruction that the assault was committed.

Upon the evidence as it stood at the close of the case the court should have dismissed the complaint. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, J., concurred.

Judgment and order affirmed, with costs.