Peter Anderson & Co. v. Diaz

92 S.W. 861, 77 Ark. 606, 1906 Ark. LEXIS 40

Opinion

Wood, J.,

(after stating the facts.) Was appellant liable?'

The decision in Gage v. Harvey, 66 Ark. 68, shows that there is no statutory liability. The sale of liquor at appellant’s place of business was not the proximate cause of the injury. Nor was appellant liable according to any of the rules of the common law. Black on Intox. Liq. § 281; Cruse v. Aden, 127 Ill. 231; Struble v. Nodwift, 11 Ind. 64.

The cruel act of its agent, Arthur Anderson, was clearly beyond the line of his employinent. The master is not liable for the acts of his servant that are beyond the scope of his employment. Cooley on Torts, p. 627. “Where a servant quits sight of the object for which he was employed, and, without having in view his master’s orders, pursues that which his own malice suggests,” the master will not be liable for his acts. McManus v. Crickett, 1 East, 106. The “test,” says the Supreme Court of Nebraska, of the master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether it was committed in the prosecution of ’ the master’s business. Davis v. Houghtellen, 33 Neb. 582.

Appellee mistakes the law in saying “that there is no distinction between the duty that the proprietors of a saloon owe their patrons,” and that which a common carrier owes its passengers, or an innkeeper his guests. There is a difference as wide as the poles. The saloonkeeper does not hold himself out to the public as the protector of those who may be patrons of his saloon. His business the rather advertises him the other way. But the common carrier and the innkeeper hold themselves forth as providing for the comfort and safety of all who may seek their services — • a “refuge through their portals.” It is strictly their duty and their business to exercise the proper care to look after and to protect their passengers and guests from insult and injury. Britton v. Atlanta & C. Ry. Co., 88 N. C. 536, 43 Am. Rep. 248. Not so with the saloonkeeper.

The doctrine announced above is supported by the cases cited in appellant’s brief and by the following: Story v. Ashton, L. R. 4 Q. B. 476; Stone v. Hills, 45 Conn. 47; Wood, Master & Servant, 546; Whittaker’s Smith on Neg. p. 199; Wharton’s Law of Neg. § 168; and numerous cases cited in notes to these.

The judgment is reversed, and the cause is dismissed.