Seawell, J.,

dissenting: As to tbe rule that an employer is liable for tbe negligent or malicious conduct of an employee acting within tbe scope of bis authority there is no room for disagreement. But as to bow far tbe rule of respondeat superior may be extended to cover nonnegligent torts of tbe employee is a question that has afforded room for differences of opinion. Tbe relation between tbe tortious act and tbe scope of employment may not always be so clearly seen; and yet I know of no class of cases in which tbe injury is more worthy of redress, where liability exists, since it is apt to be inflicted under circumstances of oppression and aggravation which ordinarily do not exist.

To my thinking tbe sole question involved in this case is whether tbe conduct of Young, employee, may reasonably be attributed to tbe protection of bis employer’s property from theft or to a vindication of tbe law and punishment of a thief. Daniel v. R. R., 136 N. C., 517, 48 S. E., 816; Lamm v. Charles Stores Co., 201 N. C., 134, 159 S. E., 444; Long v. Eagle Store Co., 214 N. C., 146, 198 S. E., 573. If tbe former, tbe case should have been submitted to tbe jury; if tbe latter, nonsuit was proper. If there was a doubt, it was one which tbe jury alone could resolve.

In my opinion, tbe whole transaction was susceptible to tbe inference that Young acted throughout in a reasonable, though mistaken, intent to protect tbe property from theft or to recover it from the thief. Tbe plaintiff was a customer in defendant’s store. Tbe employee was a salesman in tbe store in charge of tbe cigar counter and charged with tbe duty of making sales of cigars therefrom. He was in charge of tbe merchandise so offered for sale, at least to tbe extent of protecting bis employer’s property from theft. It cannot be supposed that an attempt to protect tbe property and to recover tbe same immediately from tbe thief and prevent bis escaping with it was outside of bis line of duty. It was in tbe attempted performance of this duty be made tbe accusation *604of tbeft against the plaintiff and caused him to be detained for search and actually searched in a public place immediately outside the store by a policeman.

Decision here is made to turn upon Daniel v. R. R., supra. In that case the plaintiff was arrested upon a telephone call made by an employee of the railroad from Greenville to Kinston, and at a hotel in Kinston the plaintiff was arrested because of a supposed theft of money in Greenville. The case was decided on the principle announced by Blackburn, J., in Allen v. R. R., L. R., 6 Q. B., 65: “There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property; it is done merely for the purpose of vindicating justice.”

The same distinction is made in Lamm v. Charles Stores Co., supra, where the arrest was made at the instance of an employee three months after the supposed theft. In Long v. Eagle Store Co., supra, where the factual situation was practically identical with that in the case at bar (the detention and search of the plaintiff in that case was outside the store), the Court said: “But in this case we do not have to go that far in order to attach liability to his employer for the conduct of Senter. The arrest of the plaintiff at the instance of defendant’s assistant manager, and a search of his person for an article just acquired and still in his possession, in the immediate presence and at the instance of Senter, must be regarded as one continuous transaction, insulated by neither time nor circumstance from a valid inference which the jury might draw that the conduct of the assistant manager was directed, mistakenly as it proved, to the immediate protection of his employer’s property against theft and its recovery from the thief, and that his action was well within the scope of his authority. Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32; Berry v. R. R., 155 N. C., 287, 71 S. E., 322; Brockwell v. Telegraph Co., 205 N. C., 474, 171 S. E., 784.”

In the case at bar the employee was in hot pursuit of the supposed thief. He had practically raised a hue and cry. His avowed purpose was to recover the property, and both his accusation of theft and the detention at his instance by an officer of the law were within that purpose and therefore within the scope of his employment and in the mistaken exercise of what appeared to be an immediate duty.

A few seconds time and a few feet of space did not destroy the inte-grality and continuity of the transaction. The mantle of authority, if *605be ever bad it, did not drop from bis shoulders eo instanti wben be raced across tbe threshold of the store. The accusation of theft and the detention and search of the plaintiff were within the res gestee.

The case should have gone to the jury.

This is the question for decision: Was Richard E. Young, Jr., in pursuing plaintiff as he left the Asheville store of defendant, and, while upon a public street, in charging him with larceny of two cigars from the cigar stand in the store, and in causing him to be searched by a city police officer, acting within the line of his duty and exercising the functions of his employment as clerk at the said cigar stand ?

In keeping with old principles, about which much has been written, the answer is “No.”

The principle is well established that when the relationship of master and servant exists the master is liable for the acts of his servant, whether negligent or malicious, which result in inj’ury to third persons when the “servant is acting within the line of his duty and exercising the functions of his employment.” Roberts v. R. R., 143 N. C., 176, 55 S. E., 509, 8 L. R. A. (N. S.), 298, 10 Ann. Cas., 375; Willis v. R. R., 120 N. C., *601508, 26 S. E., 784; Daniel v. R. R., 136 N. C., 517, 48 S. E., 816, 67 L. R. A., 455, 1 Ann. Cas., 718; Sawyer v. R. R., 142 N. C., 1, 54 S. E., 793, 115 Am. St. Rep., 716, 9 Ann. Cas., 440; Marlowe v. Bland, 154 N. C., 140, 69 S. E., 752, 47 L. R. A. (N. S.), 1116; Cotton v. Fisheries Products Co., 177 N. C., 56, 97 S. E., 712; Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32; Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446; Lamm v. Charles Stores Co., 201 N. C., 134, 159 S. E., 444, 77 A. L. R., 923; Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817; Snow v. DeButts, 212 N. C., 120, 193 S. E., 224; West v. Woolworth Co., 215 N. C., 211, 1 S. E. (2d), 546; D’Armour v. Hardware Co., 217 N. C., 568, 9 S. E. (2d), 12. In Lamm v. Charles Stores Co., supra, Brogden, J., groups tbe lines of cases involving liability, and nonliability.

“Tbe simple test,” as stated in Sawyer v. R. R., supra, quoting from Wood on Master and Servant, section 307, “is wbetber they were acts witbin tbe scope of bis employment; not wbetber they were done while prosecuting tbe master’s business but wbetber tbey were done by tbe servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred, but wbetber tbe act was such as was incident to tbe performance of tbe duties entrusted to him by tbe master, even though in opposition to bis express or positive orders.” Roberts v. R. R., supra; Cooper v. R. R., 170 N. C., 490, 87 S. E., 322; Dickerson v. Refining Co., supra.

Tbe liability of tbe master does not depend upon tbe motive of tbe servant, such as bis intent to benefit tbe employer or to protect bis property, but upon tbe question wbetber in tbe performance of tbe act which gave rise to tbe injury tbe servant was, at tbe time, engaged in tbe service of bis employer. Kelly v. Shoe Co., supra; Dickerson v. Refining Co., supra.

In Daniel v. R. R., supra, a case in which plaintiff was arrested and searched for money which agent of defendant suspected be bad stolen, Walker, J., stated that tbe general rule is that “when an agency is created for a specified purpose or in order to transact particular business,-tbe agent’s authority, by implication, embraces tbe appropriate means and power to accomplish tbe desired end. He has not only tbe authority which is expressly given but such as is necessarily implied from tbe nature of tbe employment ... A servant entrusted with bis master’s goods may do what is necessary to preserve and protect them, because bis authority to do so is clearly implied in tbe nature of tbe service, but when tbe property has been taken from bis custody or stolen and tbe crime has already been committed, it cannot be said that a criminal prosecution is necessary for its preservation or protection. *602This may lead to tbe punishment of tbe tbief or tbe trespasser, but it certainly will not restore tbe property or tend in any degree to preserve or protect it. It is an act clearly without tbe scope of tbe agency and cannot possibly be brought within tbe limits of implied authority of tbe agent.”

And in Willis v. R. R., supra, tbe Court also quoting from Wood on Master and Servant, 546, appropriately said: “ ‘In tbe absence of express orders to do an act, in order to render tbe master liable, tbe act must not only be tbe one that pertains to tbe business, but must also be fairly within tbe scope of tbe authority conferred by tbe employment.’ ” And, Faircloth, J., writing for tbe Court, continues: “For illustration, a clerk to sell goods suspects that goods have been stolen and causes an arrest to be made. Tbe master is not liable for tbe imprisonment or for tbe assault, because tbe arrest was an act which tbe clerk bad no authority to do for tbe master, either express or implied.” This is quoted with approval in Daniel v. R. R., supra, and in Parrish v. Mfg. Co., supra.

Tbe general principle that a master or principal is not liable for tbe tortious act of bis servant or agent unless tbe act be done by an authority, either express or implied, given him for that purpose by tbe master, applies to action for false arrest or imprisonment. 35 A. L. R., 645. Annotation (b).

Tbe principle also extends to actions for slander when tbe defamatory words are uttered by tbe express authority of tbe master or within tbe course and scope of tbe agent’s employment. Cotton v. Fisheries Products Co., supra; Sawyer v. Gilmer’s, 189 N. C., 7, 126 S. E., 183; Oates v. Bank, 205 N. C., 14, 169 S. E., 869; Vincent v. Powell, 215 N. C., 336, 1 S. E. (2d), 826. Yet, in connection therewith, Ilolce, J., writing in tbe case of Cotton v. Fisheries Products Co., supra, observes that: “Owing to .the facility and thoughtless way that such words are not infrequently used by employees, they should not perhaps be imputed to tbe company as readily as in more deliberate circumstances — that is, they should not be so readily considered as being within tbe scope of an agent’s employment; but tbe basic principle is recognized and may be applicable, whenever, as stated, tbe slander has been expressly authorized by tbe company, or when tbe defamatory words have been used in tbe course of tbe agent’s employment and authority for their utterance may be fairly and reasonably inferred,” citing authorities.

Applying these principles to tbe ease in band, it is manifest that tbe employment of Richard E. Young, Jr., carried no implied authority to go out of tbe store and prefer charges against, and cause tbe search of a third party, as attributed to him. It is admitted in tbe pleadings that his father, Richard E. Young, was at tbe time tbe sole manager of tbe defendant’s store. Where be was. tbe evidence fails to disclose. If *603another bad control of tbe store, tbe record is silent. On tbe other band, tbe evidence tends only to show that Bichard, Jr., was employed as a mere clerk behind tbe cigar stand, and that be sold cigars. Furthermore, if tbe custody of tbe cigars were under bis control and, if bis suspicion bad been well founded, tbe cigars bad already been stolen, and passed from bis possession and out of tbe store. Under such circumstances tbe defamatory language used and tbe acts committed, while outside tbe store, and bn tbe street, are clearly without tbe scope of bis employment, and cannot possibly be brought within tbe limits of implied authority of an agent.

Tbe judgment below is

Affirmed.