Collette v. Rebori

107 Mo. App. 711 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — As the petition discloses, the suit is to hold the master civilly liable for the tort of a servant committed, as contended by plaintiff, while the servant was acting within the scope of his employment and in furtherance of the business entrusted to him by the master. There was no contractual relation between plaintiff and defendant binding defendant to exercise any greater care for the protection and safety of plaintiff while visiting the store than defendant was required by law to use for the safety of such of the general public as might visit his store on business. It is said in a number of well-considered cases that the basis of the civil liability of the master to a third person, to whom he is not bound by any contract, for the acts of his agent or servant is that the law requires that one who, as master, employs another to do an act for his benefit and who is the choice of the master, must take the risk of injury to third persons by either the manner or mode of performing the act. McDonald v. Snelling, 14 Allen 290; Railroad v. Hack, 66 Ill. 238; Schaefer v. Osterbrink, 67 Wis. 495. To render the master liable the servant must have been acting in the capacity in which he was employed, and when so acting the master will be liable although the servant abuses his authority.

Wood, in his work on Master and Servant (2 Ed.)', p. 585, states the law as follows: “No decisive test can be given, but in all cases the act must have been done while engaged in the prosecution of. some business for the master, and that business must have been such as the servant had authority from the master to do. _ That is, he must have been authorized, either expressly or impliedly, to do the act in some manner, which he has improperly or wrongfully performed, and the fact that he was only authorized to do the act in a certain way does not save the master from liability. If he was authorized to do the act at all, the master is liable for the consequences of his doing it in a different manner, if the mode adopted by him is so far incident to the employment that it comes within its scope;, for, having-given the servant ' any authority in the premises, he alone must suffer its abuse. He has set the wrong in motion, and must abide the consequences as against innocent parties.” This quotation is approvingly cited by this court in Voegeli v. The Pickel Marble & Granite Co., 49 Mo. App. 643.

In Stevens v. Woodward, 44 L. T. (n. s.) 153, it is said: “The act for which the master is liable must be something- incident to the employment for which the servant is hired and which it is his duty to perform. ’ ’

In Haehl v. Railroad, 119 Mo. l. c. 339, 24 S. W. 735, the same principle is announced as follows: “The principle of responclea-t superior applies only when what it complained' of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is then responsible, because the thing complained of, although done through the agency of another, was done by himself; and it matters not in such cases whether the injury with which it is sought to charge him is the result of negligence, or unshillful or wrongful conduct, for he must choose fit agents for the transaction of his business.”

In Railroad v. Randall, 40 Kan. 421, the same doctrine was announced in the following- language: “The master is responsible for the acts of his employee or servant when the act is done in the prosecution of the business that tbe employee or servant was engaged by tbe master to do. ' When, therefore, the employee or servant, while engaged in the prosecution of the master’s business, deviates from his instructions as to the manner of doing it, this does not relieve the master from liability for his acts.”

In Knowles v. Bullene & Co., 71 Mo. App. 341, it was ruled that the proprietor of a department store wás liable in an action for the illegal arrest and false imprisonment of' a person arrested by his floorwalker for pilfering lace from a counter in the presence of a salesman, though the proprietor was at the time absent and had instructed his servants not to arrest unless they themselves witnessed the act, for the reason that the act was within the scope of the floorwalker’s authority to protect and recapture stolen goods of the master.

In Pierce v. Railroad, 44 L. R. A. l. c. 318, the Supreme Court of North Carolina said: “The true test is, was it (the act) done by such employee in the scope of the discharge of duties assigned him by the defendant (master) and while in the discharge of such duties? If the servant volunteers to do an act beyond the scope of his employment, the master is not liable. Marion v. Railroad, 59 Ia. 428.

In Bowler v. O’Connell, 27 L. R. A. (Mass.) 173, it was held that the test of the master’s liability is this: Was the act done for the purpose or as a means of doing what the servant was employed to do? If not, then in respect to that act the servant was not in the course of the master’s business.

In Jones v. Packet Co., 43 Mo. App. 399, it is said1: “A master is not liable for every act which a servant may do while acting about the master’s business. The act must not only be done while the servant is employed about the business of the master, but it must also pertain to the duties of the employment. And held, that, where the second mate of a boat engaged in inland navigation used violence for the purpose of compelling a deck-hand to work, and the deck-hand did work under such compulsion, the master would not be liable for the wrong done, in the absence of evidence of the delegation of such authority to the mate. ’ ’

The distinction attempted to be drawn in this case is more subtle and astute than sound and appears to be opposed to the long line of decisions in this and other States holding the master liable for the tortious acts of the servant when done in the course of his employment whether authorized by the master or not, and is, in effect, overruled by the later case of Voegeli v. Pickel Marble & Granite Co., supra, where the court said: “The test is not the lawfulness or the unlawfulness of the means adopted by the servant to accomplish his master’s business,, but it is whether such means are so far incident to the employment as to come within its scope.” This language finds support in Dearmin v. Schnell, 71 Mo. App. 507; Ins. Co. v. Owens, 81 Mo. App. 201; Garretzen v. Duenckel, 50 Mo. 104; Greer v. Lafayette County Bank, 128 Mo. 558, 30 S. W. 319.

The cases illustrating the application of this doctrine are legion but are not all consistent. Some, like Jones v. Packet Company, are curious. The best considered cases hold that the master is liable to third persons for the negligent, fraudulent or tortious acts of his agent or servant- when it is shown that the agent or servant was acting within the scope of his employment and that the act complained of was done as a means or for the purpose of doing the work assigned him by the master. To assault and beat a creditor is not a recognized or usual means resorted to for the collection of a debt, nor is it one likely to bring about a settlement of a disputed account. The evidence shows that when plaintiff returned to the store for the purpose (as he says) of amicably settling the disputed account and made known to Sansone his purpose, Sansone did not take up the settlement of the account with him, but without the least provocation assaulted and beat him, not for the purpose of settling or collecting the account, but to gratify his private malice against the plaintiff. He was not, therefore, about his master’s business nor acting within the scope of any authority delegated to him by defendant. For these reasons the rule of respondeat superior does not apply.

There is no evidence tending to show that defendant was present when the assault was made, that he aided or abetted Sansone in making it or counseled or advised him to make it, hence there was a failure of proof and the learned trial judge did not err in taking the case from the jury. The judgment is affirmed.

Reyburn, J., and Goode, J., concur.