Concoff v. Hippodrome Theater Co.

SHAW, J.

The defendant appeals from a judgment in favor of plaintiff for two hundred dollars rendered in an action by the plaintiff for damages from an alleged false arrest and imprisonment.

The defendant was conducting a theater in the city of Los Angeles and had in its employment as an usher one John Barcena. Plaintiff purchased a ticket of admission to the theater and proceeded to the front thereof and was in the act of getting to a seat when he was interrupted by Barcena. The plaintiff alleges that Barcena arrested him, compelled him to go to the entrance of the theater, and there delivered him into the custody of a police officer, by whom he was taken to the city jail and kept there for an hour, all without probable cause or right, or any authority to do so. It is further alleged that Barcena did this in the regular course of his employment as servant of the defendant.

[1]

A corporation is liable for the torts of its servants if such servant has authority from it to do the tortious act, but not otherwise. The burden is on the plaintiff to prove such authority. The authority may be either express or implied. There was no evidence that any express authority was given by the defendant to Barcena to arrest the plaintiff, and no claim is made to that effect. The contention is that there was an implied authority arising from the fact that the arrest was within the scope of the duties which Barcena was employed by the defendant to perform.

[2]

This contention is untenable.

The evidence merely shows that he was employed as an usher in the theater which was the scene of the arrest, and that as such usher his duty was to attend to the seating of the patrons after they had entered the room. It may be true that one of the implied duties of an usher in such position is to prevent disorderly conduct in the theater, and perhaps to eject persons guilty thereof, but there is no evidence on the subject respecting his duties in that particular or that he had any such authority. But in any event there was no implied authority to him from the defendant to arrest or imprison persons who might commit criminal offenses while in the

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