ON MOTION NOR REHEARING.
Ellison, J.Counsel urges that the court fails to give effect to his contention that there can not be implied authority given to an agent to do an act which the principal could not lawfully do if present. His *352point is this: that there can be no lawful arrest (even of a guilty party) without a warrant except the person making the arrest saw the act committed constituting the offense. And that therefore, since defendants (not having seen the act) could not have lawfully arrested plaintiff, there could be no implied authority to arrest from them to the floorwalker who did not see the act.
_: — :—: U¡¡robatf.ata In my opinion it is a false assumption to say that the act was unseen and merely suspected. In this respect the case is unlike Mali v. Lord, 39 N. Y. 381, for that case was one of mere suspicion. While it is strictly true that the floorwalker did not see the act, yet defendants’ saleswoman at the counter from which the lace was supposed to have been taken, did see the act. The floorwalker was in sight, immediately at hand, the saleswoman stepped up to him and informed him of what had just taken place and he immediately took the plaintiff to the superintendent’s office. The arrest was the act of either or both of these agents of defendants. It was as much the act of the saleswoman as of the floorwalker. It was no more than if she herself had taken hold of plaintiff and said to the floorwalker, “I have just seen this woman steal a piece of lace and put it in her pocket, take her to the superintendent.” The arrest was made on view (though a mistaken one) and not on suspicion. It is conceded by instructions (asked by defendants and in this respect not modified) that defendants’ employees, for the purpose of protecting defendants’ goods, had the right, as such employees, to arrest any one seen stealing them. In this case that right was exercised by the party who supposed she saw the act, aided by another employee who was present and who, though not seeing the act himself, was called upon by the party who supposed she did see it, and informed him that it had then just been committed.
*353It may be suggested that plaintiff’s petition grounds the case on the arrest having been made by the floorwalker only. We do not believe that ought to affect the controversy at this stage. It must be rememberedthat neither the saleswoman nor floorwalker, without special authority, could act for defendants in the matter of making arrests for any other purpose than protecting or securing the property of defendants. They could not act for defendants on the mere matter of vindicating the law and punishing offenders. Cameron v. Express Co., 48 Mo. App. 99. So then when it is charged that the floorwalker, who did not see the act, made the arrest and the proof showed that he did so at the instigation and in aid of a fellow employee who did at that moment see the act, it is not a case of failure of proof.
-Li; — : : But to take defendants on their own ground as stated in their motion we yet can see no reason for qualifying what "has been said in the foregoing opinion. The employees of defendants had authority to protect defendants’ goods, and in attempting to do so they made a mistake to the injury and humiliation of the plaintiff. They! were engaged in the course of their service and employment and their principals are liable for the manner of executing such service. A railway conductor has no authority to put off his train any orderly passenger who has a ticket, yet if he does do so he is doing an act relating tp the master’s service where he has been placed by the master for the purpose of deciding when such an act is proper and necessary. If he does put off such a passenger, it is an unauthorized act, yet no one would say the master was not liable for such act. Motion overruled.
Smith, P. J,, concurs; Gill, J., absent.