18 Ohio C.C. Dec. 33 | Oh. Circ. Ct., Allen | 1905
The plaintiff in error filed his amended petition in the common pleas court against Hayes Greer, the Lake Erie & Western Railway Company, the Western Union Telegraph Co., and the
To this amended petition a general demurrer was interposed by the defendants, which demurrer was sustained by the court of common pleas, and plaintiff not desiring to plead further, said’ amended petition was dismissed as to said defendant companies at the costs of the plaintiff. Judgment was rendered accordingly, and this proceeding is prosecuted here to reverse said judgment of the court of common pleas.
It is claimed by the plaintiff in error that the common pleas court erred in sustaining said demurrer, and we think that this contention is well founded. The petition avers that the deadly weapon with which the mischief was done was given to the defendant, Greer, by said defendant companies for the purpose of being used against improper intruders, or, in other words, to protect said building and business interests. Presumably this meant robbers, or burglars, or any one that might seek illegally to trespass upon the property rights of the defendant companies. The revolver was given to Greer to be used for the very purpose for which he thought that he did use it, to-wit, to shoot unlawful intruders. That Greer made a mistake in directing his attack against Blakely •does not alter the material facts in the case that this gun had been entrusted to Greer to shoot with and .to be used, if necessary, against human beings ■and, in the nature of things, the determination of the necessity for such use was left by said companies to the judgment of said Greer. He exercised that judgment when 'he fired upon Blakely.
In that case a baggage master of the railroad company being angered by abusive language of Wetmore, picked up a hatchet and struck him. It was held that such act was-not authorized by the master. The hatchet was furnished for a wholly different purpose. The hatchet was not furnished to strike people with, nor as a means of defense or protection. In the case at bar, however, the revolver was furnished to be used as Greer did use it, subject only to a condition dependent upon the judgment of Greer, namely, that the person shot at was an unlawful in-, trader, and Greer’s mistake of judgment in this matter must be ehargable to his employers.
In the case of Stranahan Bros. Catering Co. v. Coit, the same principle is laid down. See also the case of The Nelson Business College Co. v. Lloyd, 60 O. S., 448; Judge Minshall, in deciding the case uses the following language:
“Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of the servant, done in the course of his employment and within the scope of his authority. ” , ,
Th same principle is laid down in the case of The Lima Ry. Co. v. Littler, a case which went up from this county. It is useless to multiply authorities. The sole question under 'the pleadings to be determined in this ease is: Was Greer, at the time he fired the shot, in the service of, and acting for his master and within the scope of his authority? As indicated above, it is the judgment of this court that he was so acting. Under these circumstances we hold that the court erred in sus