#### MRS. J. V. D’ARMOUR, JR., v. BEESON HARDWARE COMPANY, INC.

(Filed 22 May, 1940.)

1. Principal and Agent § 7—

Neither the fact of agency nor its scope can be proven by acts and declarations of the alleged agent, and ordinarily such acts and declarations are not admissible until evidence of agency *aliunde*has been offered, but the order of proof rests largely in the discretion of the trial court.

2. Same—

The fact of agency and its scope may be proven by the direct testimony of the agent.

3. Trial § 13—

The order of proof rests largely within the discretion of the trial court.

4. Trial § 17—

Where evidence is competent for a restricted purpose, it is incumbent upon the adverse party to request that its admission be restricted, and in the absence of such request its general admission will not be held for error.

5. Same—

Where incompetent evidence is admitted over objection, and later during the trial such evidence becomes competent for the purpose of contradicting and impeaching a witness, it is incumbent upon the adverse party, upon the evidence becoming competent for the restricted purpose, to request that its admission be so restricted.

6. Principal and Agent § 7 — Testimony of declarations of alleged agent relating to fact and scope of agency held competent to contradict agent’s testimony.

In this action for malicious prosecution, testimony of declarations relating to the fact and scope of the alleged agency, made by the agent upon the trial of the criminal prosecution, was admitted over objection prior to the proof of agency by other evidence. Later the alleged agent testified that he had not made the declarations or that he did not remember having made them. Defendant principal made no request that the admission of the testimony be restricted. *Held:*Although the testimony of the declarations of the alleged agent was incompetent at the time of its admission, it *569later became competent for tbe purpose of contradicting and impeaching tbe agent’s testimony, and its admission will not be held for error.

7. Master and Servant § 211b: Principal and Agent § 10a—

A master or principal is liable for a tort of his servant or agent committed. in the course of the employment or scope of the authority and in furthez'ance of the superior’s business.

■8. Principal and Agent § 10a—

In this action for malicious prosecution, the evidence, considered in the light most favorable to the plaintiff, *is held*sufficient to be submitted to the jury upon the question of whether the acts of defendant’s agent in procuring the warrant and prosecuting plaintiff were done in the course of his employment and within the scope of his authority as agent of defendant.

9. Trial § 22b—

Upon motion to nonsuit, the evidence must be considered in the light most favorable to plaintiff, giving to her the benefit of every reasonable intendment thereon.

10. Principal and Agent § 10a—

The charge of the court on the question of the liability of a principal for the tortious act of his agent *held*in accord with the principles enunciated in *Dieherson v. Refining Co.,*201 N. C., 90, and without error.

Appeal by defendant from *Clement, J.,*at October Term, 1939, of GuileoRD.

Civil action to recover both compensatory and punitive damages for alleged malicious prosecution.

On 6 December, 1938, upon affidavit of J. Gurney Briggs charging that plaintiff aided and abetted J. V. D’Armour, Jr., in disposing of, and with removing to and secreting in tbe State of Georgia, a refrigerator •on wbicb Beeson Hardware Company bad lien, witb intent to prevent and binder tbe enforcement of said lien, a warrant was issued under provisions of 0. S., 4288, for tbe arrest of plaintiff. Pursuant thereto she was arrested and held to bail to answer said charge in tbe municipal court of High Point. Upon trial in said court on 29 January, 1939, there was verdict of “Not guilty.” At this trial Attorney Waynick appeared in aid. of tbe solicitor for tbe State in tbe prosecution of tbe action, and Briggs appeared as a witness for tbe State.

Plaintiff alleges that J. Gurney Briggs, in causing said warrant to be issued, was acting as the agent, employee and office manager of defendant and “within tbe scope of bis authority”; that tbe “defendant employed a private prosecutor to assist tbe State in tbe effort to obtain a conviction of this plaintiff”; and that tbe prosecution was without probable cause and malicious “in that it was instituted and conducted for tbe purpose of extorting and extracting a sum of money from plaintiff.”

*570Defendant denies these allegations and avers that it knew nothing of the prosecution until after the trial.

Upon the trial of the present action both parties introduced evidence. The case was submitted to the jury upon these issues which were answered as indicated:

“1. Did the defendant Beeson Hardware Company cause the arrest and prosecution of the plaintiff, as alleged in the complaint ? Answer: ‘Yes.’

“2. If so, was the arrest without probable cause? Answer : ‘Yes.’

“3. If so, was the arrest malicious ? Answer: ‘Yes.’

“4. What amount of actual damages, if any, is the plaintiff entitled to recover of the defendant ? Answer: ‘$1,000.00.’

“5. What amount of punitive damages, if any, is the plaintiff entitled to recover of the defendant? Answer: ‘None.’ ”

From adverse judgment thereon, defendant appeals to Supreme Court and assigns error.

*Gold, McAnally •& Gold and J. Keith Harrison for plaintiff, appellee.*

*D. H. Parsons for defendant, appellant.*

Winborne, J.

Though there are many assignments of error on this appeal, the points stressed for error relate to the basic question as to whether J. Gurney Briggs, in procuring the warrant for and arrest of plaintiff and in employing an attorney to prosecute and in prosecuting’ her on the criminal charge specified, was acting in the course of his employment and within the scope of his authority as agent of defendant. Regarding this basic question it is urged that the court erred: (1) In the admission of incompetent evidence; (2) in refusing to grant motion for judgment as of nonsuit; and (3) in charge on pertinent principles of law. However, after careful consideration of the whole case, we find no prejudicial error.

1. It is well settled that neither the fact of agency nor its nature and extent can be proven by the acts and declarations of the agent. *Parrish v. Mfg. Co.,*211 N. C., 7, 188 S. E., 817, and cases there cited. Ordinarily, such acts and declarations are not admissible against the principal until evidence of the agency *aliunde*has been offered. *West v. Grocery Co.,*138 N. C., 166, 50 S. E., 565. However, “proof of agency, as well as of its nature and extent, may be made by direct testimony of the alleged agent.” *Parrish v. Mfg. Co., supra,*and cases cited.

In this connection, plaintiff, over objection by defendant, was permitted to testify that in the municipal court on the trial of the criminal action she heard Briggs testify that Mr. Ragan, president of the Beeson Hardware Company, authorized him to sign the warrant, and that “they *571arrested me to collect tbe money.” While at the time this testimony was admitted it was incompetent, yet after Briggs as a witness for defendant had denied that he was so authorized by Mr. Ragan or any other officer of the company, and had stated that he did not remember that he testified in the criminal case that the warrant was to collect what he claimed plaintiff owed, the evidence of his declarations in those respects would have been competent for the purpose of contradiction and impeachment. Defendant would have had the right to have the court limit it to that purpose, but in the absence of request that it be so limited, defendant would waive right to objection to its admission generally. *S. v. Hawkins,*214 N. C., 326, 199 S. E., 284. Moreover, when the evidence of the declarations became competent for the purpose of contradiction and impeachment, even though previously admitted, defendant could have then moved the court to limit it to the purpose for which it was competent. Failure to do so constitutes waiver of the right. Ordinarily, the order in which evidence is admitted in conduct of the trial rests in the discretion of the court. We are, therefore, of opinion and hold that the testimony incompetent when admitted, was subsequently rendered competent.

There are other objections to the admission of evidence which in the light of other evidence, admitted without objection, are harmless.

2. The principle is well established that where the relationship of master and servant exists the master is liable for the acts of his servant, whether negligent or malicious, which result in injury to third persons when the “servant is acting within the line of his duty and exercising the functions of his employment.” *Dickerson v. Refining Co.,*201 N. C., 90, 159 S. E., 446; *Robertson v. Power Co.,*204 N. C., 359, 168 S. E., 415; *Parrish v. Mfg. Co., supra; Snow v. DeButts,*212 N. C., 120, 193 S. E., 224; *West v. Woolworth Co.,*215 N. *C.,*211, 1 S. E. (2d), 546; *Parrott v. Kantor,*216 N. C., 584, 6 S. E. (2d), 40.

In *Dickerson v. Refining Co., supra,*it is said that “When the servant is engaged in the work of the master, doing that which he is employed or directed to do, and an actionable wrong is done to another, either negligently or maliciously, the master is liable, not only for what the servant does, but also for the ways and means employed by him in performing the act in question.”

In *Parrish v. Mfg. Co., supra,*the Court said: “Thus, when a servant, acting with authority or within the scope of his employment, wrongfully procures the arrest of a person, the master is liable in damages for such arrest and imprisonment.” Authorities supporting the principle are there assembled.

When all the evidence is considered under these principles and in the light most favorable to plaintiff, giving to her the benefit of every rea*572sonable intendment, as must be done in passing upon motion for judgment as in case of nonsuit at tbe close of tbe evidence, it is sufficient to-take tbe case to tbe jury on tbe question of tbe fact of agency of J. Gurney Briggs, as well as its nature and extent.

There is evidence tending to show tbis factual situation: In 1936 J. Y. D’Armour, Jr., husband of plaintiff, executed to defendant a conditional sale contract on tbe refrigerator in question to secure tbe balance of purchase price thereof, payable in monthly installments. Thereafter, in 1937, on account of illness, be entered United States Veterans’ Hospital at Augusta, Georgia, and has since remained there. After be left High Point, plaintiff, who is a nurse, made certain payments on tbe refrigerator to General Motors Acceptance Corporation. Plaintiff contends that in December, 1938, there was nothing due Beeson Hardware Company for tbe refrigerator. However, a claim and delivery proceeding was instituted in tbe name of Beeson Hardware Company against J. V. D’Armour, Jr., to obtain possession of tbe refrigerator. J. Gurney Briggs testified: “We took out claim and delivery papers to take up tbe machine.” Briggs was then and bad been for twenty years employed by defendant, and bad authority to issue claim and delivery papers whenever necessary and “different types of processes to assist Beeson Hardware Company in tbe recovery of money or property.” Testimony of R. R. Ragan, president of defendant company. J. Gurney Briggs testified that “We bad, I bad” turned tbe account over to Attorney Waynick for collection; that Waynick “was just working with me on it”; that “tbe account was for Beeson Hardware Company, but it was an account on my list; I did not particularly have authority to go out and employ a lawyer to collect it; I-have some authority. As to whether I have authority to hire lawyers to collect accounts, that depends — I am not an officer in tbe corporation. I am a bookkeeper. ... I did not have *specific*authority”; that tbe attorney bad “one or two accounts besides that,” and was to be paid for bis services by a credit on what be owed Beeson Hardware Company; that “I employed a lawyer to assist in tbe prosecution of tbe criminal case without *authorized*authority from tbe Beeson Hardware Company.” Briggs further testified that, after tbe sheriff bad talked with plaintiff regarding tbe claim and delivery, be talked with her. He said “she called me on tbe phone and said she did not owe but $31; I told her tbis wasn’t a claim and delivery proceeding, that we did not want anything except what was due on it. ... We claim it was $52.”

Furthermore, without objection, T. S. Mason, an employee of and witness for defendant, speaking of tbe trial in tbe criminal case where be was a witness “in tbe prosecution of tbis woman,” testified “Mr. Briggs told me to come down there. ... I think they bad some lawyers, *573tbe Beeson Hardware Company, Mr. 'W’aynick, and tbe State bad Mr. Ben Herman. ... I am a bookkeeper and do a little collecting. Do not occupy tbe same position of responsibility tbat Mr. Briggs does.”

3. Tbe charge of the trial judge clearly and fully sets forth tbe law applicable to tbe case in band. When compared with numerous decisions of this Court, particular *Dickerson v. Refining Co., supra,*tbe charge follows with marked precision and accuracy established pertinent principles.

Tbe judgment of tbe court below is

Affirmed.