The plaintiff (here appellant) brought his action seeking to recover damages from the defendant for injuries inflicted by a watchman in its employ. In the first cause of action plaintiff, in substance, alleges: That the defendant employed one Stafford as watchman of all its property at certain railroad yards on its line of road, to guard its said property from depredations, to apprehеnd and turn over to a peace officer for arrest all persons who he believed had committed or attempted to commit any depredation upon its said property, to ascertаin the identity of and to keep off and frighten away from said premises and property all persons acting in a suspicious manner, and armed him with a revolver to carry out his said employment. That plaintiff, аbout 3 o’clock in the morning, while passing the place where Stafford was stationed as such watchman in a peaceable manner, and without having committed or intending to commit any depredatiоn upon its property, was fired upon by Stafford, who called to him to halt, but that plaintiff, being frightened, ran. That Stafford continued to fire toward him and hit him in the knee, but that Stafford did not intend to hit, but only to frighten, him. For a second cause of action, in addition to the foregoing matters, plaintiff alleges that Stafford was, at the time, a deputy sheriff, but does not allege that he was acting in such a capacity at the time of the ,аcts complained of. Defendant filed general demurrers which were sustained, and, plaintiff declining to amend, judgment was rendered for defendant, and from said judgment plaintiff prosecutes this appeal. His оnly assignment of error is predicated upon the action of the court in sustaining the demurrers.
The question presented by this appeal may most conveniently be determined by a consideration of the рropositions advanced by appellee in support of its demui’rers and in the order stated; the same being: First. That the acts complained
While plaintiff’s allegations that the acts complained of were within the scope of Stafford’s employment are mere conclusions and to be treated as surplusage, yеt all allegations of fact contained in the complaint which are properly pleaded must, for the purpose of this ease, be treated as true. It is alleged in the complaint that Stafford was employed as a watchman to protect the defendant’s premises and property from depredation, to ascertain the identity of persons who might commit or attempt to commit such depredation, “to apprehend and turn over to a peace officer for arrest all persons who he had reason to believe or did believe had committed or attempted to commit any crime against the property,” to keep off and frighten away from the property all persons acting in a suspicious manner, and “that said Stafford was armed by defendant with a revolver to carry out his said employment.”
The words “within the scope of his employment,” as applied to the liability of a master for the wrongful acts of his servant, are probably not susceptible of any satisfaсtory definition of general application; each case must be determined by the particular facts and circumstances surrounding it. Before the master can be held liable for the negligence or wrongful act of his servant, it must appear that the servant was. engaged at the time in the performance of the duties of his employment, and if so engaged, and the wrongful act was performed in connection with such duties and in apparent furtherance of their accomplishment, the master will be liable, even though the act be in excess of the authority conferred by him or in violation of his express directions, provided,
The intent with which an act is done affords a more reliable test as to whether it is within the scope of the servant’s employment than do the methods of its accomplishment. The nature of Stafford’s employment carries with it an implied authority to use force when necessary. “And even where the master owes no duty to the person' injured, the authority to use force may be implied from the nature of the employment so as to render the master liable, even though the servant goes bеyond the necessity of the situation and uses more force than necessary. For instance, the authority to use force is ordinarily implied where the employee is a watchman or doorkeeрer.” 26 Cyc. 1541. In Rogahn v. Moore Mfg. & Foundry Co.,
Applying the foregoing tests to the facts alleged in the complaint, it seems clear that Stafford was not аcting independently, but strictly within the scope of his employment.
Counsel for appellee, in his second proposition, assumes that the complaint is based upon simple negligence. If this assumption be true, the complaint is fatally defective in failing
In many cases the words “willful” and “wanton” are treated as synonymous, and in those cases where an attempt has been made to distinguish them it has usually been with reference оnly to the facts of the particular case. An act is “willful” where the resulting injury is intentional or the natural and probable consequence of the act. The word “wanton” is, we think, more comprehensive thаn “willful.” To constitute “wantonness” it is not essential that the injury should have been intentional or the probable consequence of the wrongful act; it is sufficient that the act indicates a reckless disregard of thе rights of others, a reckless indifference to results, or that the injury is the likely and not improbable result of the wrongful act. The word “likely” is here used in the sense of something more than possible and less than probable. “Wantonly. Done in a licentious spirit, perversely, recklessly, without regard to propriety or the rights of others; careless of consequences, and yet without settled malice.” 2 Bouvier’s Law Dictionary, 1207.
The complaint expressly negatives any intent to inflict injury, and consequently eliminates the element of willfulness from our consideration. It only remains to consider whether the pleader has negatived wantоnness as well. We think he has fallen a little short of so doing. Stafford had no right to arrest the plaintiff under the circumstances alleged in the complaint. Crim. Code (Rev. Stats. 1901), c. 3, tit. 5. The injury is alleged to have been inflictеd in the night while the plaintiff was, at most, a mere technical trespasser upon defendant’s right of way and was guiltless of the commission or intent to commit any crime, and while he was retreating to avoid apрrehension or arrest, or, as he may well have thought, a felonious assault. In firing toward and near the plaintiff while he was running, and in the nighttime, though without intending to hit him, but only intending to try to halt or frighten him away, Stafford must have known
Appellee’s fourth proposition is obviously without merit. There is nothing in the complаint from which a duty on the part of plaintiff to halt may he implied.
Plaintiff, in his second cause of action, alleges that Stafford was a deputy sheriff • but the facts stated do not indicate that he acted in such сapacity, but clearly show that at the time of the injury he was acting in the capacity of watchman.
For the foregoing reasons, the judgment of the district court is reversed, and the cause remanded for further proceedings.
KENT, O. J., and CAMPBELL and LEWIS, J«L, eonenr. ■