RAILEY, C.
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 [637]*637during the October term of said court, an amended petition in two counts was filed in said cause, -which,
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]*638or 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]*639freight; 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]*640month.; 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.
[641]*641Liability of Corporation for Murderous Assault of Agent. I. Does, the first count of the amended petition contain facts, sufficient at law, to constitute a cause of action against defendant?
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[642]*642ployee, agent and servant of defendant, and acting within the scope of his employment as sudh agent and servant, did suddenly and without warning draw a pistol, and without just cause or provocation, wantonly, maliciously and unlawfully shoot plaintiff twice, wounding him in the 'breast and shoulder, etc.
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 [643]*643good cause of action, even if'the language “within the, scope of his employment” be eliminated therefrom. Cases of this character present a mixed question of law and fact. It is a common, but an appropriate form of pleading, in eases like the one at bar, to set out the the facts constituting the cause of action, and follow the same with the allegation that the agent at' the time of the assault was acting within the scope of his employment. The demurrer goes to the count as a whole, and should not be determined upon isolated and disconnected portions of the petition.
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 [644]*644agent of defendant, and was acting within the scope of his employment in endeavoring to obtain from plaintiff a receipt for said consignment, and a settlement of the controversy in respect to said shortage. It is insisted, however, by respondent, that Joiner was not acting within the scope of his employment when he shot plaintiff at the time and place mentioned in the complaint. The petition, however, alleges, that plaintiff, under protest, started to comply with Joiner’s demand and was in the very act of signing the receipt when Joiner, being at the time the agent of defendant, and acting within the scope of his employment, as such agent, did suddenly and without warning draw a pistol, and without just cause or provocation wantonly, maliciously and unlawfully shoot plaintiff, etc.
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 [645]*645upon them, while in the very act of settling their controversies with the agent of the carrier. The conclusion thus reached is fully sustained hy the great weight of modem jurisprudence. [Whiteaker v. C. R. I. & P. R. R. Co., 252 Mo. 438; O’Malley v. Construction Co., 255 Mo. l. c. 391-2; Winn v. Railroad, 245 Mo. l. c. 415-6; Haehl v. Railroad, 119 Mo. 325; Perkins v. Railroad, 55 Mo. 201, 214; Garretzen v. Duenckel, 50 Mo. 104; Whimster v. Holmes, 177 Mo. App. 130; 5 Thompson on Corporations (1 Ed.), sec. 6298; Richberger v. Express Co., 73 Miss. 161; Railroad v. Hackett, 58 Ark. l. c. 387; Tillar v. Reynolds, 96 Ark. 358; Skipper v. Clifton Mfg. Co., 58 S. C. 143; Stranahan Co. v. Coit, 55 Ohio St. 398; Carlberg v. House Furnishing Co., 178 Ill. App. 424; Ziegenhein v. Smith, 116 Ill. App. l. c. 82; D. & R. G. Ry. v. Harris, 122 U. S. 597; Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 109; Forrester v. So. Pac. Ry. Co., 36 Nev. 247; 2 Cooley on Torts (3 Ed.), secs. 627, 631, 632; Wood’s Law of Master & Servant (2 Ed.), secs. 307-309; 1 Shearman & Redfield on Negligence (6 Ed., by Street), sec. 146, p. 356; Pierce on Railroads, pp. 277-8; 2 Mechem on Agency (2 Ed.), secs. 1929-1960; 1 Clark & Skyles on Law of Agency, secs. 491, 493, 494, 502; Leavitt’s Law of Negligence, pp. 527-8; Otis Elevator Co. v. First Nat. Bank, 163 Cal. 31; Ryder v. City of La Grande, 73 Ore. 227; Hardeman v. Williams, 169 Ala. 50.] Many other eases are cited in above authorities to same effect. A few quotations' will illustrate the trend of the modern rule in dealing with this subject.
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 [646]*646her husband, by defendant’s watchman in charge of its bridge across the Missouri river at St. Charles, Missouri, in March, 1891. She recovered in the trial court a judgment for $5000, and it was affirmed by the Supreme Court. The bridge in charge of said watch-, man was a railroad bridge, and not a public highway for foot passengers. At about eight o ’clock in the forenoon of March 17, 1891, deceased was seen crossing above the bridge from the St. Louis county side towards St. Charles on the west. He had gone over the approach on the St. Louis side, the main bridge and a part of the approach on the St. Charles side, when he was met by James W. Hill, defendant’s bridge watchman, and his brother. The watchman motioned to him to go back, but the latter failed to do so. Hill went up to him and had some conversation with him, but no witness heard it. “It resulted, .however, in the deceased starting back, when Hill struck him on the back or shoulder twice with a club or billy, and the deceased commenced running back towards the St. Louis side, followed by Hill. They thus proceeded until the deceased had recrossed the trestle on the St. Charles side, the whole of the main bridge, and about one-half the approach on the St. Louis side, pursued by Hill, when they two being thus alone on that approach, Hill in the rear of deceased and distant about fifteen feet from and pursuing him, a pistol shot was fired, the ball striking the deceased in the back of the neck a little to the left of the median line and on a line with the base of the ears,” producing his death.
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. [647]*647Here, the plaintiff was not a trespasser, bnt was transacting his, and the company’s business, with the defendant’s agent, upon invitation, and while in the very act of complying with the agent’s request was shot without warning and without provocation. •
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]*648justly 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.”
[649]*649In 2 Cooley on Torts (3 Ed.), section 626, page 1017, the greatest of all writers upon this subject, in clear and forceful language, said:
“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]*650out 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.
II. The second count of the petition sets out in a general way substantially the same facts pleaded in the first count, and in addition thereto attempts to plead hnowledae. upon the part of defendant as to the temper, disposition, character and unfitness of its agent who assaulted plaintiff. While it does not appear from the petition that such knowledge came to defendant, in time by the exercise of ordinary care’ to have removed said agent before the assault was made, yet the other facts stated in said count, under the authorities heretofore cited, are sufficient to constitute a good cause of action. Hence the demurrer to the second count was improperly sustained.
III. We have reached the conclusion, that each count of the petition states a good cause of action.
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.
Brown, G., not sitting.
PER CURIAM. — The foregoing opinion by Raiuuy, C., is adopted as the opinion of the Court in Banc.
Graves and Bond, JJ., concur; Faris and Bevelle, JJ., concur in result; Woodson, G. J., dissents in separate [651]*651opinion, in which Blair, J., concurs; Walker, J., dissents.