The opinion of the court was delivered by: MOTLEY
Findings of Fact and Conclusions of Law
Defendant Raymond Dean (Dean) is the owner of a protective service which orally agreed with defendant Daitch Crystal Dairies (Daitch) to furnish a Dean guard to protect the merchandise in a Daitch store from pilferage by customers. Defendant Canty is the guard furnished pursuant to this agreement. Before he was assigned to stores by Dean, Canty had undergone a twoweek period of training and orientation as a store guard. Upon reporting to the Daitch store in question, the manager directed Canty where to stand and which counters to guard with especial care. The Daitch store manager instructed Canty to inform him should Canty detect any shoplifting. The manager also directed Canty where to station himself when the manager was out to lunch. Canty punched two time cards each morning when he arrived at the Daitch store - one for Daitch and one for Dean. Daitch paid Dean who in turn paid Canty.
The plaintiff, Mary McLeod, recovered a judgment in the amount of $3,000 for slander against Dean, Daitch and Canty upon which this cross-claim by Daitch is based. The plaintiff's action for slander arose out of questions directed by Canty to plaintiff, a female customer of the Daitch store involved, in the course of a conversation with the plaintiff about the disposition of a certain article of merchandise which Canty erroneously believed he saw her put into her tote bag.
After a jury verdict on March 3, 1967 for plaintiff against all three defendants defendant Daitch by this cross-claim seeks:
1. to have the court determine the rights of the parties as between themselves;
2. judgment over against defendants Dean and Canty; and
3. costs, disbursements, and expenses incurred in the defense by Daitch.
In the first instance, we are faced with the question of the relationship between Daitch and defendants Dean and Canty. Was the protective service an independent contractor or the agent of Daitch? To determine this question we must look to the surrounding facts and circumstances. This contract was to be performed in the Daitch store. A Daitch store manager on the premises could and did give directions to the Dean employee on how to carry out his function of protecting the Daitch merchandise from pilferage by customers of Daitch. In addition, there is the important consideration that the contract could be terminated by either Dean or Daitch at will.
"The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is usually enjoyed by an independent contractor, and hence is considered as a strong circumstance tending to show the subserviency of the employee. Indeed it has been said that no single fact is more conclusive, perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result of the work itself." 14 Ruling Case Law 72.
The control that Daitch exercised went considerably beyond merely dictating the result of the work to be done under the contract. Under these circumstances, the court must conclude that Dean is not an independent contractor but an agent for Daitch. Adams v. F. W. Woolworth, 144 Misc. 27, 257 N.Y.S. 776 (1932).
It is a well settled rule that a principal or master may be held liable in damages for slander by his agent or servant where the latter was carrying out express orders, or acting according to express or implied authority, or in discharge of his duties within the scope of or usual course of employment. 53 C.J.S. Libel and Slander § 150 (1948). An act, although forbidden, or performed in a forbidden manner, may be within the scope of employment. Restatement (Second), Agency § 230 (1958). It has long been established that
"The test of the master's responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed ...