266 Mo. 633 | Mo. | 1916
Lead Opinion
This action was commenced in the circuit court of the city of St. Louis on March 16, 1912; and afterwards on the 18th day of October, 1912, and
without caption and signatures, reads as follows:
“Plaintiff states that defendant is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the State of Illinois and doing business in the State of Missouri; that on and about the first day of February, 1911, defendant was engaged in and carrying on an express business as a common carrier of freight; that defendant had and maintained an office in the city of Edwardsville, Illinois; that said office was in charge of one Plarry Joiner, who was the agent and servant of defendant; that defendant was at said time a merchant in said city of Edwardsville ; that several days previous to the said first day of February, 1911, defendant in its capacity as a common carrier delivered to plaintiff a consignment of fruit, and that plaintiff refused to sign a receipt for same until the said Harry Joiner, the agent and servant of defendant, had agreed to present plaintiff’s claim for an allowance for a shortage in the consignment; that upon the said first day of February, 1911, the said Harry Joiner, defendant’s agent and servant, telephoned to plaintiff to come to the office of defendant for the purpose of discussing a settlement of the matter; and in response to said message plaintiff started to defendant’s office as requested by defendant’s servant; that near the office plaintiff met defendant’s servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; that plaintiff under protest started to comply with said demand- and was in the very act of signing the receipt when the said Harry Joiner, being at the time the employee, agent and servant of' the defendant company and acting within the scope of his employment as such agent and servant, did suddenly and without warning draw a pistol and without just cause*638 or provocation wantonly, maliciously and unlawfully shoot plaintiff twice, wounding him in the breast and shoulder.
“Plaintiff states that as a direct result of said injuries and assaults he suffered great bodily and mental pain and was confined to a hospital by reason thereof for a long period of time, to-wit, for the period of about one month, and thereafter was confined at his home to his bed and room for the period of about one month; that by reason of said injuries he was disabled and prevented from attending to his business and affairs for the space of about seven months; that he has suffered and will continue to suffer great bodily pain, annoyance, inconvenience and expense; that as a direct result of said injuries and assault he was compelled to procure and did procure necessary medical attention and treatment, which were then necessary, and still are, and will continue to be necessary for an indefinite period, and that on account of said services alone he has been put to .the expense of about the sum of three hundred dollars.
“Plaintiff states that by virtue of the premises, he has been injured and damaged in body, mind, health, pain and suffering and loss of time and necessary expenses in the sum of ten thousand dollars actual damages and ten thousand dollars punitive damages, for both of which amounts, together' with the costs in this behalf expended, plaintiff prays judgment.
“2.
“For a second cause of action, plaintiff states that defendant is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the State of Illinois and doing business in the State of Missouri; that defendant on or about the first day of February, 1911, was engaged in the express business and was acting as a common carrier of*639 freight; that for the purposes of its business it maintained an office in the city of Edwardsville, Illinois; that defendant had as an agent and servant in charge and control of said office one Harry Joiner; that said Harry Joiner was a person of violent temper, quarrelsome disposition and without control over Ms passions ; that said Harry Joiner was a dangerous and unfit person to place in such a position; that said Joiner’s dangerous and unfit character and disposition were well known to defendant; that on and previous to said first day of February, 1911, plaintiff was engaged in business in the city of Edwardsville, Illinois; that a dispute having arisen between plaintiff and defendant’s servant and said Joiner, because plaintiff refused to sign a receipt of a consignment of fruit delivered to Mm by the defendant, that said Harry Joiner upon February first, 1911, telephoned to plaintiff to come to the office of defendant in the city of Edwards-ville; plaintiff, in response to said request, started to said office and when near there was intercepted by said Joiner, who demhnded that plaintiff immediately sign a receipt for the said consignment of fruit; that plaintiff, under protest, started to sign said receipt, and wMle he was so engaged, the said Joiner, the agent and servant of said defendant, acting within the scope of his employment as such agent and servant, did suddenly and without warning give way to a fit of passion and draw a pistol and without just cause or provocation wantonly, wilfully, maliciously and unlawfully shoot plaintiff twice, wounding Mm in and about the left breast and left shoulder.
“Plaintiff states that as a direct result of said injuries and assault he suffered great bodily and mental pain and was confined to a hospital by reason thereof for a long period of time, to-wit, for the period of about one month, and thereafter was .confined at Ms home to Ms bed and room for the period of about one*640 month.; that by reason of said injuries he was disabled and prevented from, attending to his business and affairs for the space of about seven months; that he suffered and will continue to suffer great bodily pain, annoyance, inconvenience and expense; that as a direct result of said injuries and assault he was compelled to procure and did procure necessary medical attention and service and treatment, which were then necessary and still are and will continue to be necessary for an indefinite period, and that on account of said services alone he has been put to the expense of about the sum of three hundred dollars.
‘ ‘ Plaintiff states that by virtue of the premises he has been injured and damaged in body, mind, health, pain and suffering and loss of time and necessary expenses in the sum of ten thousand dollars actual damages and ten thousand dollars punitive damages, for both of which' amounts, together with the costs in this behalf expended, plaintiff prays judgment.”
On October 21, 1912, respondent filed a demurrer to each count of said amended petition, which said demurrer without caption and signature, reads as follows :
“1. Now comes defendant and demurs to the first, count of the plaintiff’s amended petition on the ground that said count of said amended petition does not state facts sufficient to constitute a cause of action.
“2. And defendant comes and demurs to the second count of plaintiff’s amended petition on the ground that said count of the said amended petition does not state facts sufficient to constitute a cause of action.”
At the December term, 1912, and on January 3, 1913, of said term, demurrer aforesaid was sustained. On. January 31, 1913, .during said term, plaintiff declined to plead further and final judgment was rendered on said date, and the cause was duly appealed to this court.
Turning to the amended petition, and analyzing same, we find that in substance it alleges the following facts: (1) That defendant is a corporation, organized under the laws of' Illinois, and doing business in the State of Missouri; (2) that on or about February 1, 1911, defendant was engaged in the express business as a common carrier of freight; (3) that it had and maintained an office in the city of Edwardsville, Illinois; (4) that said office was in.charge of one Harry Joiner, who was at the time agent and serva/nt of defendant; (5) that defendant was at said time a merchant in said city of Edwardsville; (6) that several days prior to February 1, 1911, defendant in its capacity as a common carrier, delivered to plaintiff a consignment of fruit, and the latter refused to sign a receipt therefor, until said Harry Joiner the agent and servant of defendant aforesaid, had agreed to present plaintiff’s claim for a shortage allowance in the consignment; (7) that upon said first day of February, 1911, said Harry Joiner, defendant’s agent and servant, telephoned plaintiff to come to the office of defendant for the purpose of discussing a settle-• ment óf the matter; (8) that in response to said message plaintiff'started to defendant’s office as requested by defendant’s servant; (9) that near the office plaintiff met defendant’s servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; (101) that plaintiff under protest started to comply with said demand and was in the very act of signing the receipt, when said Harry Joiner, being at the time an em
A demurrer to each count of said petition was sustained by the trial court, upon the theory, that neither count states facts sufficient to constitute a cause of action.
Defendant strenuously insists that the words, “within the scope of his employment,” is an allegation of a legal conclusion. The above language taken alone, without any reference to that which precedes or follows it, would state simply a legal conclusion, and the truth of same would not be admitted by a demurrer thereto. [State ex rel. v. Railroad, 240 Mo. 35, l. c. 49-50; Gibson v. Railroad, 225 Mo. 473, 482; Shohoney v. Railroad, 223 Mo. 649, 671; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. l. c. 397; Sidway v. Land & L. S. Co., 163 Mo. l. c. 374-5; Clark v. Dillon, 97 N. Y. 370; Snyder v. Railroad, 60 Mo. l. c. 419; Southern Ry. Co. v. King, 217 U. S. l. c. 536-7; General Electric Co. v. El. & Mfg. Co., 144 Fed. 458; Railroad v. Lightheiser, 163 Ind. 247; Fremont, E. & M. V. R. Co. v. Hagblad, 72 Neb. 773; Kennedy v. Street Ry. Co., 72 N. J. L. 19 ; Bullock v. Butler Exchange Co., 22 R. 1.105’.] Numerous other cases can be found in practically every State of our Union announcing the same principle, but we have been unable to locale any case, ivhich would warrant the court, in passing upon the above question, to ignore the tvell pleaded facts upon whicM the conclusion of law was based. In other words, if the facts stated, aside from the language above quoted, are sufficient to stamp the acts and conduct of Joiner, at the time and place of shooting1, as being within the scope of his employment, then the petition states a
As said in Snyder v. Railroad, 60 Mo. l. c. 419, cited and relied upon by defendant: ‘ ‘ The facts being conceded, whether a given act is within the scope of a servant’s employment is a question of law for the court.”
It appears from the petition that defendant was a .corporation, a merchant, and likewise engaged in carrying on an express business, in the town aforesaid, as a common carrier of freight. It is also averred that defendant maintained an office in Edwardsville, Illinois, and that said Harry Joiner was the agent and servant of defendant, in charge of said office.
It appears from the petition that defendant as a common carrier, had delivered to plaintiff a consignment of fruit, and on account of the shortage of same plaintiff declined to receipt for said fruit unless Joiner, the agent, would present plaintiff’s claim for an allowance on account of said shortage. While matters were in this shape, the agent, Joiner, called up plaintiff by telephone, and requested him to come to defendant’s office for the purpose of discussing a settlement of the matter. In response to said message, plaintiff started to defendant’s office as requested, and when near the office plaintiff met Joiner. The latter demanded that plaintiff then and there sign a receipt for the said consignment of fruit. Up to and including above, Harry Joiner was the unquestioned
Joiner was there at the time and place of shooting as the vice-principal of defendant. The plaintiff was there upon the invitation of defendant for a legitimate purpose. He and Joiner were in the midst of the very business which had called them together, at the time said shooting occurred. In addition thereto, the petition alleges that plaintiff was in the very act of signing the receipt when he was suddenly shot, etc.
A large portion of the business of this country is conducted through agents of common carriers; and in a large measure, the public is required to come in contact with these agents in dealing1 with public service corporations. Upon grounds of public policy, if for no other reason, the principal should not be permitted to withdraw from the business and turn the same over to agents who have no regard for the public welfare, and thereby escape responsibility which he would have to bear, if attending to the business in person.
It ii? not imposing too great a hardship upon either corporations or individuals, to require them to respond in damages to legitimate patrons, • for unprovoked, wanton and malicious assaults, inflicted
Haehl v. Wabash Ry. Co., 119 Mo. 325, has not only become one of the leading cases in this State upon, the question under consideration, but has been frequently cited with approval in text books and opinions of other States. In the Haehl case, suit was brought by plaintiff to recover damages, on account of the killing of
With the above facts before it, this court sustained the judgment below, although the jurors in arriving at their verdict were authorized, if they found for plaintiff, to allow both compensatory and exemplary damages.
In the Haehl case, supra, the deceased was not lawfully upon the bridge and was retreating when shot.
In Richberger v. Express Co., 73 Miss. 161, the trial court sustained a remurrer to a petition very similar to the one at bar, and its action in that respect was reversed by the Supreme Court and said petition held to be good. In the above case, plaintiff had been made to pay an overcharge on express matter by the local agent of defendant, and the general agent had been seen and said it would be arranged. Plaintiff saw the local agent about December 25, 1894, bnt was put off. The petition avers that about the first day of January, 1895, plaintiff went to the office of said express company, upon business with it. Said agent of defendant in charge of the office informed plaintiff that he then and there desired to refund to plaintiff said overcharge, “and then and there paid the same to plaintiff, and required plaintiff to sign a receipt for the same, and when plaintiff signed and delivered said receipt to said agent, the said agent did then and there, immediately upon the reception of said receipt, and while plaintiff was there in the business office of said company, wilfully, wantonly, oppressively and wrongfully curse, abuse, insult and maltreat plaintiff, because plaintiff had demanded and received from said company the overcharge as aforesaid. ” Judge Whitfield, upon pages 171-2, closed his opinion in the case just cited, with a quotation from the very able opinion of Judge Andrews of the New York Court of Appeals, in Rounds v. Railroad, 64 N. Y. l. c. 134, as follows:
“The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or care of his property, is*648 justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or imder the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another.”
In the well considered case of Otis Elevator Co. v. First Nat. Bank, 163 Cal. l. c. 39, Judge Lorigan, speaking for said court, said:
“It is the general doctrine of the law, as it is our statutory rule, that a principal is liable to third parties not only for the negligence of its agent in the transaction of the business of the agency, but likewise for the frauds, torts or other wrongful acts committed by such agent in and as part of the transaction of such business. [Story on Agency, sec. 452; Shearman & Redfield on Negligence, sec. 65 ; Civ. Code, sec. 2338. J After declaring this to be the rule, Story says: ‘In all such cases the rule applies, respondeat superior; and it is founded upon public policy and convenience; for in no other way could there be any safety to third parties in dealings either directly with the principal or indirectly through the instrumentality of agents. In every such case the principal holds out the agent as competent and fitted to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency.’ ”
In Pierce on Railroads, at pages 277-8', the rule is tersely stated as follows:
“The company is liable for the acts of its servants in the course of their employment, both in the rightful use and in the abuse of the powers conferred upon them; and when they keep within the course of their employment, it is responsible for their negligence or wrongful act, although they are acting against its instructions, or even wilfully.”
“The master is liable for the acts of his servant, not only when they are directed by him, but also when the scope of his employment or trust Is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond.”
In 2 Mechem on Agency (2 Ed.), section 1929, .the same principle of law is clearly expressed in the following language:
“It is obvious, therefore, that the question of the principal’s or master’s liability cannot always be determined merely by putting a label upon the motive. The motive is important, but it is important not so much for the purpose of determining how the act was done as to aid in deciding whose act it was. Certain it is, at any rate, that the tendency of the modern cases is to attach less importance to the motive with which the act was done, and to give more attention to the question as to whose business was being done and whose general purposes were being promoted.”
The same author, in the same volume, under section 1960, page 1523, sums up the law upon this subject as follows:
“In many cases no better definition can be given than the words themselves suggest. But, in general terms, it may be' said that an act is within the course of the employment if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master’s business and be done, although mistakenly or ill-advisedly, with a view to further the master’s interests, or from some impulsé or emotion which naturally grew*650 out of or was incident to the attempt to perform the master’s business, and did not arise wholly from some external, independent and personal motive on the part of the servant to do the act upon his own account.”
We deem it unnecessary to quote further from the authorities upon this subject. The rule declared in the Haehl case supra, is in full accord with the recent utterances of this court, and is sustained by the decided weight of authority. We therefore hold that the first count of the petition states a good cause of action, and that the demurrer thereto was improperly sustained.
We therefore reverse and remand the case as to both counts, with directions to the trial court to set aside the judgment rendered upon each of said counts; to grant the plaintiff a new trial as to each count and that the cause be proceeded with in accordance with the views herein expressed.
PER CURIAM. — The foregoing opinion by Raiuuy, C., is adopted as the opinion of the Court in Banc.
Dissenting Opinion
(dissenting): — I dissent from the majority opinion in this case, principally for the reasons stated by me in the dissenting opinion filed in the case of Whiteaker v. Railroad, 252 Mo. 438, 1. c. 463; also for the reason that it is absurd, to my mind, to say that public service corporations of the country in employing men to conduct their business thereby authorize them to commit murder or other felonies, which constitute no part of the acts performed by them as such agents. No such idea ever enters the minds of the carrier, their employees or any of their customers; consequently, it is a non sequitur to say that such an agent or employee as Joiner, in this case, was acting within the scope of his employment when committing the crime with which the petition charges him — one of the most heinous known to Grod and man. In other words, no such corporation could, by express authority, authorize one of its employees to commit a crime in the performance of his duty to the company, unless he was acting within the scope of his employment. If such authority should be given, it would clearly be ultra vires, and not binding on the company; but should the officers of the company direct the agent to commit a crime and he should perpetrate it, then he and they would be particeps criminis in its commission, which, in no manner, could or would render the company liable to the injured party in damages; consequently, in order to render'the company liable in such a case, the agent must be acting within the scope of his employment, that is, the crime committed must have been a part of or an integral element of the act he performed for the company under its contract with him authorizing him to perform the same; and in such a case it is wholly immaterial whether his authority to commit the crime was given in express terms or im
That being true, then let us for a moment briefly consider what services or acts the agent was employed to perform for the defendant. While the petition does not state them in detail, yet in general terms it charges that he was the agent of the company at Edwardsville, Illinois, and that it was his duty to deliver to its patrons all goods transported by it to them at that point, and to take their receipts therefor.
It is also charged that the goods which the company had transported to plaintiff at Edwardsville, had been delivered to him by the agent-days prior to the day upon which the shooting occurred.
From this statement in the petition it is clearly seen that the act of delivering the goods in no manner caused or contributed to the injury; that service had been fully performed long before the shooting occurred. So this fact will be dismissed without further consideration.
Consequently, if the company is liable to plaintiff, it must be for the reason that it authorized the agent to use violence if necessary toward the plaintiff in the performance of the service of the company in procuring the receipt for the goods delivered to him.
There is no charge in the petition that the defendant had given the agent express authority to commit the assault upon the plaintiff, and, therefore, if the agent possessed that authority, it must be implied from the general authority given by the defendant to all of the agents, the plaintiff included, to take receipts from its patrons for goods transported for and delivered to them. So it is seen that the question has been narrowed down to the single legal proposition, was the crime committed by the agent, a part of, or an integral element of the act of the agent in demanding the receipt of the plaintiff for the goods previously delivered to him?
Clearly the case of Haehl v. Wabash Ry. Co., 119 Mo. 325, does not support the propositions of law announced by our learned commissioner in this case. In that case the performance of the act of the agent for the defendant, which resulted in the death of Haehl, was authorized by the company, and from the very nature of that act,, force or violence was contemplated, if necessary, for its performance. There the agent was a watchman, and among other things he was required to keep trespassers off of defendant’s bridge, and while expelling Haehl therefrom the latter was killed by the agent. In discussing that case, the court on page 340, said:
‘ ‘ It is conceded that a part of the business which Hill was employed to perform as watchman, was to keep trespassers off of defendant’s bridge; this necessarily involved the duty of putting them off after they got on, if they were found unwilling to go. The evidence tended to show that Hill was engaged in the performance of this duty when he fired the fatal shot; that the business was not done; that it was not taking care of itself, but that the defendant’s servant at the time was engaged in it and concerned about it; that he shot dum fervet opus; and so far as evidence discloses, was concerned about, and engaged in, no other business.”
But in both of those eases, this court clearly recognizes the principles of law I am here contending for. In the.first case this court on page 339,. said:
“But if his [the master’s] business is done, or is taking care of itself, and his servant not being engaged in it, not concerned about it, but impelled by motives that are wholly personal to himself and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has and can have no tendency to promote any purpose in which the principal is interested and to promote which the servant was employed, then the wrong is the purely personal wrong of the servant for which he and he alone is responsible.”
The case of Rounds v. Railroad, 64 N. Y. 129, is one of the.best considered cases in this country upon the subject, and clearly supports the views I have here expressed. At page 136, Judge Andrews puts the matter clearly:
“If he [the servant] is authorized to. use force against another when necessary in executing his mas*655 ter’s orders, the master commits it to him to decide what degree of force he shall use; and if through misjudgment or violence of temper he goes beyond the necessity of the occasion and gives a fight of action to another, he cannot as to third persons be said to have been acting without the line of his duty or to have departed from his master’s business. If, however, the servant', under the guise and cover of executing his master’s orders and exercising the authority conferred upon him, wilfully and designedly- for the purpose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, then the master is not liable. The relation of master and serant as to that transaction does not exist between them. It is a wilful and wanton wrong and trespass, for which the master cannot be held responsible. And when it is said that the master is not responsible for the wilful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury, not done with a' view to the master’s service or for the purpose of executing his orders.”
At page 137 : “It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the baggageman. .
But the 'court could not say from the evidence that the brakeman [baggageman] was acting outside of and' without regard to his employment or designed to do the injury which resulted, or that the act was wilful within the rule we.have stated.”
In the case of Pendleton v. Kinsley, 3 Cliff. 416, Fed. Case No. 10922, Judge Clifford said: “The moment the passenger enters the steamer or other conveyance he is more or less under the control of the master- or conductor and subject to their orders. Fit or unfit, humane or brutal, good-tempered or morose,’ the passenger is comparatively helpless and may be obliged to submit for the time without any means' of redress.”
Where the reason for the rule stated by Judge Clifford fails, the rule fails also, and therefore, the defendant was not the insurer of the safety of the plaintiff against assaults made by its agents, except when acting within the scope of their employment.
Thompson on Corporations (1 Ed.), in section 6298 states: That the old rule that the master was in no case liable for the wilful or malicious act committed by the servant is unsound. In section 6299, entitled ‘ ‘ The True Test Suggested, ’ ’ he says: ‘ ‘ The modern rule is, that if a servant, authorized to use force about his master’s business, uses excessive force, his master must answer in damages to the person thereby injured, wholly without reference to the state of mind under which the servant acted. If he is required to use force, and is left to his discretion as to how much he shall use, the master will, upon either view of the subject [i. e., whether with or without malice], be answerable if he uses too much force through negligence.”
In section 6300 he says: “It must now be conceded as a modern rule that the mere fact that the wrong complained of was wilful or malicious, or that in doing it the state of mind of the actor was really that which is characterized by the use of the words ‘malice,’ ‘hatred’ or ‘ill-will,’ does not exonerate the corporation from liability. But on the other hand-,
In Richberger v. Express Co., 73 Miss. 161, the court, at page 171, refers with approval to Rounds v. Delaware, Etc. R. R. Co., 64 N. Y. l. c. 136, quoted in Railroad v. Latham, 72 Miss. 32, to show when in this character of case the corporation would not be liable, and quotes at the end of the opinion from Rounds v. Delaware, Etc. R. R. Co., to show when liability exists.
Next consider 2 Cooley on Torts (3 Ed. — Lewis), sections 627, 631, 632. In section 627: “But the liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master’s business. It does not arise where the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could he supposed from the nature of his employment to have authorized or expected the servant to do.”
Judge Cooley, for the Supreme Bench of Michigan, in a case of a boy, the servant of defendant, driving over plaintiff, approved an instruction that “if the hoy ‘drove in a careless and reckless manner, he would he acting within the scope of his master’s employment;
Woods’ Law of Master and Servant (2 Ed.), sections 307-309. — In section 307 it is said: “The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business; but, whether they were done' by the- servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. ’ ’
In section 309, at page 585, it is said: “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
At page 586 it is said: ‘ ‘ The rule may 'be stated thus: For a wilful and malicious trespass of a servant, not commanded or ratified by the master, but perpetrated to gratify the private malice of the servant under mere color of discharging the duty which he has undertaken'for his master, no action will lie against the master. But if the act of the servant was necessary to accomplish the purpose of his employment and was intended for that purpose, however ill-advised' or improper, then it was implied in the em-' ployment, and the master is liable, though the servant may have executed it wilfully and maliciously.”
In Shearman & Redfield on Negligence (6 Ed., by Street), sec. 146, p. 356, it is again said the master is liable for the acts of his servant in the course of the servant’s employment. In section 148 it is said: “The fact that the servant was at the time of the injury engaged in the service of his master is not conclusive of the master’s liability. . . . The act complained of must be within the scope of authority which- the agent had from the master, or which the master gave the servant reasonable cause to believe that he had or which servants employed in the same capacity usually have or which third persons have a right to infer from the nature and the circumstances of the employment. ’ ’
In Clark & Styles, on Law of Agency, sections 491, 493, 494, 502, are cited. In section 502, concerning assault and battery by agent, it is said: “In accordance with the principles heretofore considered a principal may be held liable for an assault committed by his agent in the course of his employment and for the purpose of advancing the principal’s interests. Hence, in cases where an agent is authorized to use force against another in order to carry out his principal’s orders, the principal commits it to the agent to decide what degree of force he shall use, ’ ’ and the prin
All such men should stand before the courts and jurors of their country in the nakedness of their crime, unveiled with the cloak of apparent authority from their employer, who never dreamed of such depravity, aud receive the just punishment the law wisely prescribes for them. They are nothing but criminals disguised in sheep’s clothing.
But it is said, what will become of the innocent and injured public who suffer at their hands? Answer : What becomes of the innocent and injured public who suffer at the hands of all criminals, regardless of their avocation in life? All such criminals should be swiftly tried and speedily punished for their violation of the law, regardless of the badge they wear, whether that of an individual, an agent or an officer of the law; and in my opinion, those who commit crime under the guise of real or apparent authority are more guilty than the individual who acts upon his own initiative and responsibility, for the latter knows that he must alone meet the charge and suffer the consequences thereof, whereas the former cowardly shield themselves behind their cloak of real or apparent authority to reek their hellish designs upon others.
The score and a half or more authorities cited in the majority opinion in support of companies’ liability, as well as the many more that might be cited, show to what extent this subterfuge has been resorted to as a cloak under which to commit wrong, knowing or supposing that the company, prompted by its financial interests, will defend the civil side of all such civil actions, and thereby at the same time extract from the
In my opinion, it would be for the better public policy to let all such criminals know that they, and they alone, must personally stand responsible for such crimes; and at the same time give full force and effect to the letter and spirit of the contract of employment, namely, that the agent is to transact the 'business of the employer in an efficient, prudent and careful manner, and not to commit crime against God and man under the cloak of its authority.
The law is and always has been that where the principal exercises ordinary care and prudence in the selection of an employee, he is not liable to a fellow employee because of injury inflicted in consequence of the unskillfulness of the former. That being true, then how much stronger is the reason for the law which universally holds that no person is liable for the crime of another without he is a party to it or a conspirator in its commission?
In the case at bar there is no evidence tending to show that the respondent employed Joiner to commit the crime charged in the petition, or that it was necessary for him to commit it in asldng for the receipt, nor that the respondent conspired with him or knew of its commission until long thereafter.
Public service corporations must, because of the very nature of their business, conduct the same through numerous agents and the law presumes that they are men of good character and law abiding; and never presumes that any one will commit crime, and under that presumption it does seem to me that it is a harsh and unjust rule which holds such a company liable for the crime of one of its agents, the commission of which was not contemplated, necessary or within the scope of his employment, expressed or implied, but was wholly beyond the legal bounds of contractual
Of course, had Joiner injured the appellant while acting, within the scope of his employment', the company should be held strictly liable, but not otherwise.
I am therefore of the opinion that the judgment of the circuit court should be affirmed.
