Plaintiff drove into a Detroit Standard Oil Company station operated by defendant Jones for tbe purpose of buying some oil for bis car which was tben being driven by bis son Jack. An argument developed between Jones and plaintiff. Plaim tiff contends tbe controversy began because he objected to Jones putting bulk oil in plaintiff’s motor when be bad requested oil from a sealed can; that Jones tben began to curse bim. Jones says that plaintiff began tbe trouble by passing dirty remarks about Standard Oil Company stations and their service; that plaintiff began to call Jones names and that because of bis actions Jones thought plaintiff yias connected with a gasoline price war tben going on. Plaintiff paid Jones for tbe oil and bis son Jack drove bim out of tbe station. For some reason, plaintiff bad bis son stop tbe car and got out and walked back across tbe street to tbe station; plaintiff says be thought Jones bad forgotten be bad paid bim since Jones followed tbe car out to tbe street. Jones bad gone back to bis station at that time. The two continued to argue. Jones tben backed away 20 or 25 feet, without warning pulled out a gun and shot plaintiff in tbe abdomen, inflicting a painful and almost fatal wound.
Plaintiff brought this action to recover damages against Jones and tbe Standard Oil Company for. tbe attack, charging that Jones was tbe agent of *357 the oil company “and that the happening herein related occurred during the due course of his employment and regular discharge of his duties.” Jones contended that he acted in self-defense since* ho thought plaintiff had a gun in his pocket. The Standard Oil Company put forth several defenses, chief of which were that Jones was an independent contractor since it had leased the station to him; and even if it were found Jones were its agent, the shooting was a deliberate act and did not arise out of' the course of his employment. The trial judge held the Standard Oil Company’s motion for directed verdict under advisement under the Empson act, 3 Comp. Laws 1929, § 14531 (Stat. Ann. § 27.1461), and allowed the case to go to the jury. The jury found against both defendants. Thereafter the trial judge ordered judgment non obstante veredicto as to the Standard Oil Company on the two grounds above noted. Plaintiff appealed from the judgment in favor of the Standard Oil Company. Defendant Jones did not appeal.
Was Jones acting within the scope of his authority, even if it were to be conceded he was a servant of the oil company when he shot plaintiff? It is argued by plaintiff that Jones did shoot within the scope of his duties as manager of the oil station. Plaintiff cites several cases to support his contention. However, none of these cases seem to be directly in point.
Cook
v.
Railroad Co.,
“The true rule is that for a positive wrong by a servant beyond the scope of the master’s business intentionally or recklessly done, the master cannot be held liable. Such acts may constitute personal torts of the servant, but the master is not responsible.”
Since this above holding would bar plaintiff’s recovery against defendant Standard Oil Company even if plaintiff proved Jones were its employee, we need not go into the question of whether or not Jones was an employee or an independent contractor.
*359 The judgment entered in the trial court must be affirmed, with costs to defendant appellee.