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.