Rudolph Gehl, Respondent, v. Bachmann-Bechtel Brewing Company, Appellant

Rudolph Gehl, Respondent, v. Bachmann-Bechtel Brewing Company, Appellant. Second Department, March 28, 1913. Husband and wife — action by husband for loss of services of wife by reason of assault—when assault by servant not imputable to master — witnesses—when infant required to take oath —Code of Criminal Procedure, section 393. In an action by a husband to recover for the loss of services of his wife, alleged to have been sustained by reason of an assault committed upon her by an employee of the defendant, it appeared that the defendant furnished the plaintiff, a saloon keeper, with beer, and advanced money to him for his license in consideration of which the plaintiff made an assignment to the defendant in which, among other things, he agreed to surrender and deliver to the defendant, upon demand, his present liquor tax certificate and any other certificates hereafter issued to him for the . premises, and also authorized and empowered the defendant to enter the premises and take away the liquor tax certificate. The plaintiff being in default in payment on account of the license, defendant’s employee, with a marshal, after demand, attempted to take the license, but the plaintiff’s wife grasped it and in attempting to take- it from her she was injured. It also appeared that the plaintiff, when he applied for the saloon, was referred to the defendant’s employee, and that the latter arranged for the occupation of the place and collected the installments as they fell due for beer and for the license. Held, that the defendant’s employée had no authority to take the license from the plaintiff, and that his act in assaulting the wife was not imputable to the defendant. It seems, that if defendant’s employee had had in his possession a power of attorney, enabling him as defendant’s agent “to enter said premises and take away said liquor tax certificate,” he would not have been guilty of trespass in seizing it without force, but even then he would not have been authorized to enter forcibly or take it from the plaintiff’s wife. It was error to allow the plaintiff’s son, aged seven at the time of the alleged assault and nine at the time of the trial, to make a statement without taking an oath or affirmation, although he promised to tell the truth on the stand. The provision of section 392 of the Code of Criminal Procedure, permitting evidence by infants under the age of twelve years to be -received' “though not given under oath” has not changed the rule in civil actions. Appeal by the defendant, the Bachmann-Bechtel Brewing Company, from a judgment of the County Court of Richmond county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of March,. 1912, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 27th day of March, 1912, denying the defendant’s motion for a new trial made Upon the minutes. Arthur B. Hyman, for the appellant. Gustav Gunkel, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The main questions are Whether the act of one Bechdoll in assaulting the plaintiff’s wife is imputable to the defendant, the former’s employer, and whether it was error to allow the plaintiff’s son, aged seven at. the event and nine at the trial, to make a statement without oath or affirmation. The plaintiff tenanted a saloon and the defendant furnished him with.beer, and for securing the money advanced for the license the latter held an assignment of it by an instrument which, among other things, provides: “ I will surrender and deliver up to the said party of the second part upon demand the said liquor tax certificate and. any and every other liquor tax certificate hereafter issued to me for said premises, and all unexpired coupons thereon, and I hereby authorize and empower the said party of the second part to enter said premises and take away said liquor tax certificate and any and every other liquor tax certificate hereafter issued to me for said premises.”. The plaintiff was in default in a payment on account of the license, ánd after demand Bechdoll, with a marshal, attempted to take the. license, but the plaintiff’s wife grasped it, and in an attempt to take it from her she was injured, as the jury found. It is urged that, when the plaintiff applied to the defendant for the saloon, he was referred to Bechdoll as' his representative, and that the latter did concern himself with plaintiff’s induction to the place, and that later he collected the installments as they fell due for beer and for the license. Such authority did not clothe Bechdoll with authority to take the license from the plaintiff, as the acts done pursuant to it were in their nature quite different from those involved in demanding the license and, upon refusal to deliver, seizing it. The plaintiff must furnish evidence showing that Bechdoll had from the defendant general, special or apparent authority “to enter said premises and take away said liquor tax certificate,” as the assignment provides. Such authority is not in fact or in appearance included in the capacity to collect the installments or in the earlier designation of the manto arrange for the occupation of the place, I look in vain in the record for any authority or semblance of it to do the act that the assignment, and the power of attorney included in it, contemplate. I do not find in the record sufficient competent evidence that Bechdoll had the instrument in his possession. It is unnecessary to consider what inference might be drawn if it appeared that to him had been delivered the power of attorney to enable him as defendant’s agent “ to enter said premises and take away said liquor tax certificate.” Invested with such authority, he would not have been guilty of trespass in seizing without force the certificate, but even then he would not have been authorized to enter forcibly or to capture it from the plaintiff’s wife. The plaintiff’s son was nine years old at the time of the trial and seven at the time of the event. Although he had not been to Sunday school and answered that he knew nothing about G-od, he was accustomed to say his prayers at home and had been taught to tell the truth and was aware that if he did not do so on the stand he would be “put away,” as he said. He also stated that he did not know who would put him away or why that would happen to him, but he promised that he would tell the truth on the stand. Predicated upon such examination the oath was withheld, but his testimony was received in the form of a statement. The inquiry whether he knew anything about God was quite indefinite and abstract, and was not calculated to elicit anything informing even from a person of more mature understanding, embarrassed by the publicity of his position and by the unexpected inquiry. More simple conversation with the child might have elicited some evidence of the Divinity to whom his prayers were directed. For. the rest, he was sensitive to the fact that his failure to tell the truth exposed him to. punishment, and it is quite immaterial that he was unaware of the agencies that would be used to make such disposition of him. In any case, his incapacity to be sworn as a witness did not authorize the reception of his evidence without oath or affirmation.- Any presumption that a child -by reason of tender age is incompetent to testify may be rebutted by disclosure of his knowledge of the nature and sanctity of an oath and of the moral and legal penalty that should follow a known falsehood. (State of West Va. v. Michael, 37 W. Va. 565; 19 L. R. A. 605, 608.) At his age it is not expected that he would be amenable to the law denouncing perjuries, but it might be inferred that he would be constrained to greater truthfulness if asked to lay his hand on the Gospels of which he may have had some knowledge. But if that be beyond his appreciation, there is no practice that justifies the reception of an unsworn statement. (People v. Frindel, 58 Hun, 482; Neustadt v. New York City R. Co., 104 N. Y. Supp. 735.) The provision of section 392 of the. Code of Criminal Procedure permitting evidence by infants under the age of twelve years to be received “though not given under oath” has not changed the rule in civil actions. The error in the admission of the testimony of Rudolph Gehl as to Mr. Hyman’s statement concerning the whereabouts of Bechdoll should not recur. The admission of the testimony of the witness Blohm of his statement to Mrs. Gehl after the event was error, as was that of the witness- Sahle relating to a conversation with Bechdoll. Even the declaration of Bechdoll himself would not have been competent. With reference to the evidence of Dr. Jameson, it may be said that, while it was proper for him to state whether the conditions and events assumed in the question were competent to produce the conditions found, he was not permitted to testify as to what might or might not occur, or what is “very apt ” to produce conditions. It is not necessary to ascertain to what extent he exceeded the limit of expert opinion,- but it is considered that there was some departure from the true rule, which should hot be repeated. The judgment and order should be reversed and a new trial ordered, costs to abide the event. Jenks P. J., Burr, Rich and Stapleton, JJ., concurred. Judgment and order of the County Court of Richmond county reversed and new trial ordered, costs to abide the event.