Thomas M. Reed, Respondent, v. The New York and Richmond Gas Company, Appellant

Thomas M. Reed, Respondent, v. The New York and Richmond Gas Company, Appellant. Gas company — liability of, where its servant breaks a cellar door in order to-remove, a meter — express direction by the gas company need not be shown — act done within scope of employment—punitive damages not allowed—what considered in determining the damages — verdict of §150 not excessive. Where a gas company, entitled under section 68 of the Transportation Corporations Law (Laws of 1890, chap. 566) to enter upon a consumer’s premises for the purpose of removing a gas meter therefrom, breaks open a ’ cellar door in effecting such entry, it becomes a trespasser ab initio. Where it appears that the gas company issued an order to its servants to collect a specified sum of money from the consumer or to remove the meter, and that such order was returned to it with a statement that the meter had been removed, the gas company is liable for the trespass, even though it gave no express directions to its servants to break open the door in order to effect the ' removal. In such a case the consumer is not entitled to recover punitive damages, in the absence of any evidence that the gas company authorized or ratified its servants’ acts, or that the trespass was committed after the -unfitness of the servants had become known to the gas company. The consumer may, however, recover from tíre gas company compensatory damages, which damages involve a determination as to the extent of the injury, insult, invasion of the ^privacy and interference with the comfort of the consumer and his family. The Appellate Division will not set aside, as excessive, a verdict of §150 rendered in favor of the consumer, although the actual damages to the cellar door which was broken open were merely nominal. A master may be held liable for the acts of his servant within the general scope of his employment while about the master’s business, even though the servant’s acts be negligent, wanton or willful. Appeal by the defendant, The New York and Richmond Gas Company, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 25th day of January, 1904. A. E. Walradt, for the appellant. James Burke, Jr., for. the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The action is for trespass in that servants of the defendant broke open a cellar door in order to take out a meter belonging to the defendant in the premises of the plaintiff. The plaintiff served a bill of particulars wherein he claimed for compensatory damages, $150; punitive damages, $75 ; damages to the cellar door and for the repair of the same, $25. The learned Municipal Court justice charged the jury that if they believed the servants of the defendant “ broke in,” they might award “ any sum of damages you believe proper up to the limit of $250.” The jury returned a verdict of $150. The defendant moved for a new trial under section 254 of the Municipal Court Act, and excepted to the denial of that motion.. I cannot say that the damages are excessive. It is true that the counsel for the appellant states in his points: “ As to the actual damages to the lock and doors, they were merely nominal,” and it is not contended that there was any .other injury to the property of the plaintiff. It is also true that the jury upon the evidence could not award punitive damages against this defendant, for there was no proof that it had authorized or ratified its servants’ acts, or that this act of the servants was done after the unfitness of the servants was known to the defendant. (Muckle v. Rochester Railway Co., 79 Hun, 32, 38; Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 44.) But there remains the question of compensatory damages. Compensatory damages embrace the determination of the extent of the injury, insult, invasion of the privacy and interference with the comfort of the plaintiff and his family. (Wood-buff, J., in Ives v. Humphreys, 1 E. D. Smith, 196.) Hnder the circumstances, it strikes me that the $150 found by the jury' by way of compensation cannot be said by an appellate court to be excessive- The point is made that the defendant is not liable. It is liable if the servants’ acts were commanded or authorized by it. And it is held that “ the authority may be express or implied, and a previous command may be proved either by direct evidence or by any legal evidence which will satisfy the jury.” ( Welsh v. Cochran, 63 N. Y. 181,184.) There is in evidence an order from the defendant to its servants that they should collect five dollars and forty cents or remove the meter, and a return thereon that it had been removed. This was produced by the defendant on the trial, and, therefore, presumably it had been returned to it by its servants. Even though the master had given no explicit directions to break open the door in order to make the removal, a master may be held liable for the acts of a servant within the general scope of his employment, while about his master’s business, even though the act be “negligent, wanton or willful.” (Grimes v. Young, 51 App. Div. 239, per Willard Bartlett, J., citing Mott v. Consumers' Ice Co., 73 N. Y. 543; Ochsenbein v. Shapley, 85 id. 214; Burns v. Glens Falls R. R. Co., 4 App. Div. 426; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23 ; Meehan v. Morewood, 52 Hun, 566; affd., 126 N. Y. 667.) Conceding that the Transportation Corporations Law (*§ 68) gave to the defendant the right of entry, yet the abuse thereof by breaking open the door constituted it a trespasser ab initio. (Six Carpenters’ Case, 8 Coke, 146a; Adams v. Rivers, 11 Barb. 390.) The judgment should be affirmed, with costs. All concurred. Judgment of the Municipal Court affirmed, with costs. Laws of 1903, chap. 580.— [Rep.