The plaintiff testified that he attempted to climb upon defendant's box car, attached to a moving freight train, catching hold of the iron bars for the purpose of stealing a ride; that a flagman on top of the car told plaintiff to come up to him, when he (plaintiff) started to run; that he had gone about eight feet from the car, when the flagman shot him — shot him twice — inflicting the injury from which he suffered, etc. Plaintiff was, at the time of the shooting, sixteen years of age. This was the entire evidence in regard to the transaction. There was evidence regarding the extent of the injury. Defendant moved the court for judgment of nonsuit; motion denied. Exception. His Honor submitted the following issues to the jury:
1. "Was the plaintiff injured by the reckless and wanton acts of the defendant's agent, as alleged in the complaint?
2. "If the plaintiff was injured by the reckless and wanton acts of the defendant's agent, as alleged in the complaint, was such agent, at the time, acting in the line of his duty, scope of his (474) employment and furtherance of the business of defendant company?
3. "What damage, if any, is plaintiff entitled to recover?"
The jury answered the first issue "Yes," the second "No," and the third "Two hundred dollars."
Defendant moved for judgment upon the verdict; motion denied. Defendant excepted. Judgment for plaintiff. Defendant excepted, assigned errors and appealed.
Passing the question raised by defendant's exception to his Honor's refusal to grant the motion for judgment of nonsuit, and assuming, for the purpose of disposing of this appeal, that the question whether the flagman, when he shot plaintiff, was acting in the scope of his employment or the line of his duty, was properly submitted to the jury, the defendant is entitled either to a judgment upon the verdict or to a new trial. While the members of the Court are not agreed in regard to the correctness of his Honor's ruling upon the motion for judgment of nonsuit, a majority of them are of the opinion that defendant was entitled to have its motion for judgment upon the verdict allowed. Whatever differences of opinion may have existed in the past, the decided weight of judicial opinion concurs that for torts committed by the servant while on duty and acting within the scope of his employment or line of his duty, proximately injurious to another, the master is liable. The fact that the tort was committed
recklessly, wantonly or willfully, if within the scope of the employment, does not exonerate the master. The view which has, after most careful consideration, been adopted by both English and American courts is thus stated by Sir Frederick Pollock, probably the most accurate writer on the subject now living: "A master may be liable for the willful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes." For an interesting and exhaustive discussion of this subject see 2 Bevan on Neg., Book IV, p. 554. This limitation is both scientific and practical. (475) Certainly no one will seriously contend that a master is an insurer of his servant's conduct in respect to torts committed by him while in his employment, without regard to the pivotal question whether such conduct had any relation to or was in the scope of the employment. To maintain that he is, it must follow that almost unlimited control should be given the master over the servant, to the end that he may protect himself against such unlimited liability. The law must be both reasonable and practical — that is, it must commend itself to the sense of justice of the average man and be capable of practical application to the manifold relations of our modern, industrial, social and domestic life. It is manifest that judicial thought upon the subject, since the decision of McManus v. Crickett, 1 East., 106, has been affected by the introduction of the industrial corporation into the field of litigation, and the measure and standard of liability of the master for the torts of the servant has been enlarged and extended to meet the changed conditions of employment of servants by these impersonal agencies. Liability has been fixed upon corporations for torts of its servants which, if applied to natural persons engaged in mercantile, mechanical and agricultural employments, and especially to those employing domestic servants, would shock the reason, produce startling consequences and be restricted by legislation. Mr. Bevan, speaking of the development of he doctrine of liability of the employer for the torts of his employee, says: "From this limited beginning its scope has become so almost universal in modern law that Jessell, M. R., thus comments on it: `It is clear that, on principle, a man is liable for a man's tortious act if he expressly directs him to do it, or if he employs that other person as his agent, and the act complained of is within the scope of the agent's authority.' I agree that the court ought to be very careful how it extends the doctrine, respondeat superior. It has been carried in our law very far, indeed — I think, quite far enough." Smith v. Keal, 9 Q. B. D., 351. However this may be, and whether the law is at present upon a permanent and satisfactory basis, it is manifest that for the torts of the servant the master's liability is limited to those committed within the scope of the employment — in furtherance of his business;
for, as said in McManus v. Crickett, supra, "No master is (476) chargeable with the acts of his servant but when he acts in the execution of the authority given him." The same thought is clearly expressed by Mr. Justice Walker, in Daniels v. R. R., 136 N.C. 517: "When a servant quits sight of the object for which he is employed and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for his acts." The subject has been so recently discussed by all of the members of this Court, and all of our own and many other authorities cited, in Stewart v. LumberCo., 146 N.C. 47, that no good results would come from a repetition of what was there written. While the writer of this opinion, upon the verdict of the jury in that case, dissented from some of the views expressed in the prevailing opinion, he does not understand that the decision in that case brings into question the principle that liability of the master for the torts of the servant is limited to those done in the scope of the employment. The principle upon which the opinion of Mr. JusticeBrown rested, concurred in by the Chief Justice and Mr. Justice Hoke, was that when the master placed in the control of his servant a dangerous instrumentality for the purpose of carrying on his business, the law imposed upon him the duty of prevision and precaution. This view was very strongly stated in the concurring opinion of Mr. JusticeHoke. While the writer differed from the justices in the application of the principle to the instrumentality used in that case, he concedes that the principle is sustained both by reason and authority, and regards the question as settled, in the future cases coming before the Court, by that decision.
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The plaintiff testified that he attempted to climb upon defendant's box car, attached to a moving freight train, catching hold of the iron bars for the purpose of stealing a ride; that a flagman on top of the car told plaintiff to come up to him, when he (plaintiff) started to run; that he had gone about eight feet from the car, when the flagman shot him — shot him twice — inflicting the injury from which he suffered, etc. Plaintiff was, at the time of the shooting, sixteen years of age. This was the entire evidence in regard to the transaction. There was evidence regarding the extent of the injury. Defendant moved the court for judgment of nonsuit; motion denied. Exception. His Honor submitted the following issues to the jury:
1. "Was the plaintiff injured by the reckless and wanton acts of the defendant's agent, as alleged in the complaint?
2. "If the plaintiff was injured by the reckless and wanton acts of the defendant's agent, as alleged in the complaint, was such agent, at the time, acting in the line of his duty, scope of his (474) employment and furtherance of the business of defendant company?
3. "What damage, if any, is plaintiff entitled to recover?"
The jury answered the first issue "Yes," the second "No," and the third "Two hundred dollars."
Defendant moved for judgment upon the verdict; motion denied. Defendant excepted. Judgment for plaintiff. Defendant excepted, assigned errors and appealed.
Passing the question raised by defendant's exception to his Honor's refusal to grant the motion for judgment of nonsuit, and assuming, for the purpose of disposing of this appeal, that the question whether the flagman, when he shot plaintiff, was acting in the scope of his employment or the line of his duty, was properly submitted to the jury, the defendant is entitled either to a judgment upon the verdict or to a new trial. While the members of the Court are not agreed in regard to the correctness of his Honor's ruling upon the motion for judgment of nonsuit, a majority of them are of the opinion that defendant was entitled to have its motion for judgment upon the verdict allowed. Whatever differences of opinion may have existed in the past, the decided weight of judicial opinion concurs that for torts committed by the servant while on duty and acting within the scope of his employment or line of his duty, proximately injurious to another, the master is liable. The fact that the tort was committed
recklessly, wantonly or willfully, if within the scope of the employment, does not exonerate the master. The view which has, after most careful consideration, been adopted by both English and American courts is thus stated by Sir Frederick Pollock, probably the most accurate writer on the subject now living: "A master may be liable for the willful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes." For an interesting and exhaustive discussion of this subject see 2 Bevan on Neg., Book IV, p. 554. This limitation is both scientific and practical. (475) Certainly no one will seriously contend that a master is an insurer of his servant's conduct in respect to torts committed by him while in his employment, without regard to the pivotal question whether such conduct had any relation to or was in the scope of the employment. To maintain that he is, it must follow that almost unlimited control should be given the master over the servant, to the end that he may protect himself against such unlimited liability. The law must be both reasonable and practical — that is, it must commend itself to the sense of justice of the average man and be capable of practical application to the manifold relations of our modern, industrial, social and domestic life. It is manifest that judicial thought upon the subject, since the decision of McManus v. Crickett, 1 East., 106, has been affected by the introduction of the industrial corporation into the field of litigation, and the measure and standard of liability of the master for the torts of the servant has been enlarged and extended to meet the changed conditions of employment of servants by these impersonal agencies. Liability has been fixed upon corporations for torts of its servants which, if applied to natural persons engaged in mercantile, mechanical and agricultural employments, and especially to those employing domestic servants, would shock the reason, produce startling consequences and be restricted by legislation. Mr. Bevan, speaking of the development of he doctrine of liability of the employer for the torts of his employee, says: "From this limited beginning its scope has become so almost universal in modern law that Jessell, M. R., thus comments on it: `It is clear that, on principle, a man is liable for a man's tortious act if he expressly directs him to do it, or if he employs that other person as his agent, and the act complained of is within the scope of the agent's authority.' I agree that the court ought to be very careful how it extends the doctrine, respondeat superior. It has been carried in our law very far, indeed — I think, quite far enough." Smith v. Keal, 9 Q. B. D., 351. However this may be, and whether the law is at present upon a permanent and satisfactory basis, it is manifest that for the torts of the servant the master's liability is limited to those committed within the scope of the employment — in furtherance of his business;
for, as said in McManus v. Crickett, supra, "No master is (476) chargeable with the acts of his servant but when he acts in the execution of the authority given him." The same thought is clearly expressed by Mr. Justice Walker, in Daniels v. R. R., 136 N.C. 517: "When a servant quits sight of the object for which he is employed and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for his acts." The subject has been so recently discussed by all of the members of this Court, and all of our own and many other authorities cited, in Stewart v. LumberCo., 146 N.C. 47, that no good results would come from a repetition of what was there written. While the writer of this opinion, upon the verdict of the jury in that case, dissented from some of the views expressed in the prevailing opinion, he does not understand that the decision in that case brings into question the principle that liability of the master for the torts of the servant is limited to those done in the scope of the employment. The principle upon which the opinion of Mr. JusticeBrown rested, concurred in by the Chief Justice and Mr. Justice Hoke, was that when the master placed in the control of his servant a dangerous instrumentality for the purpose of carrying on his business, the law imposed upon him the duty of prevision and precaution. This view was very strongly stated in the concurring opinion of Mr. JusticeHoke. While the writer differed from the justices in the application of the principle to the instrumentality used in that case, he concedes that the principle is sustained both by reason and authority, and regards the question as settled, in the future cases coming before the Court, by that decision. Applying the principle to the record in this appeal, we find that his Honor, without objection by plaintiff, submitted two issues — the first, directed to the allegation that plaintiff was injured by the reckless and wanton conduct of defendant's agent, and, second, whether at the time the assault was committed the agent was acting in the line of his duty, etc. It is true that the first issue concluded with the words "as alleged in the complaint." When we refer to the complaint we find that plaintiff sets out the transaction in detail and in several aspects. We think that, read in the light of his Honor's instruction (477) and the submission of the second issue, the finding by the jury upon the first issue referred to the manner in which the assault was committed — that is, recklessly and wantonly. In stating the contentions of the parties his Honor calls attention to the testimony of the plaintiff and the contention of defendant, that plaintiff was shot "at some other time and place, and was not shot by any agent of the defendant company." He concludes this part of the charge by saying that the burden is upon plaintiff to satisfy the jury that "what he says about it
is true." His Honor then defines a wanton, reckless act, saying: "You will notice that this issue presents to you the question as to whether this was a wanton act, and I undertake to tell you what, in the eye of the law, a wanton act is. If, under the instructions I have given you, gentlemen, your answer should be `No,' it will not be necessary for you to answer the second and third issues." We quote the charge to show that the only question presented to the jury upon the first issue was whether the flagman shot plaintiff in a reckless and wanton manner. His Honor recognized the fact that plaintiff must not only establish the allegation that defendant's servant assaulted him, but must go further and show that the wanton, reckless assault was committed by the employee while acting in the scope of his employment and line of duty. The second issue was therefore consistent with the finding upon the first and necessary to establish a complete cause of action. While the plaintiff's evidence was uncontradicted, it was the province of the jury to draw the inference whether the employee was acting in the scope of the employment. "The inquiry as to the scope of the servant's employment being for the jury (unless the act is manifestly out of the course of the servant's employment, where a nonsuit is proper), the reported cases turn, in nearly every instance, either on the validity of the finding or on the question whether there is evidence for the jury." Bevan Neg., 584. The question involved in the second issue might have been tried and determined on the first if his Honor had seen proper to do so. This was done in Pierce v. R. R., 124 N.C. 83, where the court charged the jury that if they found that the injury was inflicted by the servant, in (478) the course of his employment, to find the issue for the plaintiff. The plaintiff did not except to the submission of the second issue to the jury or the instruction of the court. The question is therefore not presented whether, as a matter of law, his Honor should have held that the servant was acting in the full scope of his employment. We have been unfortunate if we have not been able to make ourselves understood in this case. We do not hold, nor is there any word in the opinion to justify the suggestion to the contrary, that corporations or natural persons are privileged to shoot people. No such question is raised by any exception in the record, nor was it suggested upon the argument. We simply hold that when, without objection or exception, an issue is found by the jury that the defendant's servant was not acting within the scope of the employment when he committed the assault, the employer is not liable. This is elementary, and the courts, "without variableness or shadow of turning," have uniformly so held.
In Palmer v. R. R., 131 N.C. 250, the opinion concludes with the words, "The employee must have been acting at the time within the scope of his employment on the defendant's car." The jury — not the
court — found that in this case he was not so acting. We are unable to perceive how we can, in the face of this finding, without a single exception by the plaintiff, do otherwise. No motion was made to set the verdict aside. This disposition of the appeal renders it unnecessary to consider the charge in regard to the character and measure of damages which could be awarded. The judgment must be reversed, with direction to enter judgment that defendant go without day, etc.
Reversed.