Dinkelspiel; J
This is a damage suit.
The pertinent allegations of plaintiff’s petition are that on or about April 14th, 1931, at about seven P. ?4. on Eighth and Coliseum Streets, in this city, plaintiffs' minor son, for absolutely no cause or reason, wa3 brutally assaulted by William White, an employee of the said defendant partnership,' was acting within the scope of his authority. Averring further that said partnership aot as watchmen and private policemen for the purpose of guarding the houses of those who employ the said defendant partnership , and that Willism'White was one of its watchmen or employees or private' policemen, and was engaged in his duties as private policeman or watchman on that day and hour set forth, guarding the houses in the. vicinity of Eighth and Coliseum Streets. And alleging further that at the time mentioned the said William White, while in the discharge of his duty as private policeman or vfstohman and acting for and being employed by said defendant partnership, he met four or five boys, all about the age of petitioners' min- or 'son, on the street, where they had a right to be, on the Corner of Eighth and Coliseum Streets, there .being nothing suspicious abotit the boys end the boys being engaged in no mischief or violation of the law, just waiting to go book to sbhool to study, were not making any noise nor doing anything to render them suspicious, when without any cause or reason or provacation of any kind or character, the said William White brutally assaulted and beat petitioners' minor son, rendering him unconscious and inflicting the injuries hereinabove cong>lained of; and th't said William White was drunk and intoxioeted and ■ that one of the residents of the neighborhood, Hr. Westfeldt whose home this men, Wllliem White, was' supposed-.to b.e guarding, telephoned to said defendant flelling them that said William White was drunk and in no fit condition focxihdqtx for 'duty and to perform the servioes required-of him.
[469]*469The followed the usual allegation of suffering and the injuries alleged and prayer for a judgment.
To this petition defendants filed an.exception that petition disolosed no cause or righu of action against the defendant, Boylan's Detective Agenoy, and Protection Polioe, and preyed for judgment dismissing plaintiff's suit at their costs.
On the trial of the exception the Oourt • - sons orally assigned, considering the exception of '.v raise of action filed by the defendant to be well founu,. .. ....omissed plaintiffs' suit and rejected their demand at their costs.
Subsequently on motion for new trial the motion was overruled, and from that judgment there is this appeal.
The Civil Code, Art. 3517. "Liability for acts of others and things in our charge. We are responsible not only for the damage occassioned by our own act but for that which is oeused by the act of a person for whom we are en"bw enable or of the thing which we heve, in our custody."
Art. 3330 of the Civil Code provides: Masters end servants. Masters end employers are answerable for the damage oocassioned by their servants end overseers in the exercise of the functions in which they are employed.
■In the case of Williams vs. the Pullman Palace Company et sis, 40 Ann. 417, the questions presented snd decided were: 1st, Can .the Railway Co. be held liable for the e.ots of an employee of the Pullman Co. under any oironmsttnoes? 3~>,d, Was plaintiff a trespasser on the Pullman car when he was struck by the porter or was he entitled to the full protection of the Railway Company is one of its passengers?
And at page 419' the Court goes on to say in the body of its opinion: "The general principle is S3: well settled that to make one person responsible for the wggVfrggraey negligent or tortuous act of another, the relation of principal and egeht or master and servant must be shown to have [470]*470existed at the time and inrespeot to the transaction, between the wrongdoer and the person sought to be ohe.rged. The defendant relies upon the-absence of this relation between the porter >-nd the company as conclusive against its liability for his acts, but we a-re of the opinion th?-t this dsfantonixi defense is not ave liable to the defendant, or rather that the persons, in charge .pullman of .the/di»taeac»D«jac car are to be regarded and treated in respeot to their relations with passengers,, as the ser.ye.nts of defendant end the defendant is responsible for ’their e.cts¿ the the same extent s-s if they were directly employed by the company." And the Court there, cites authorities both from the Supreme Court of the United States, together vd.th the highest courts of many states of the union, in support of the doctrine announced.
And sxxias gain at page 433, "The preponderance of the -evidence on tho.t point although very conflicting shows to our entire satisfaction’that plaintiff did ask permission of the porter to wash his hands, and after an exchange of a few unpleasant words, the porter struok him on the head with >. blunt Instrument while plaintiff was standing on.the threshold of the pulmsn; osx. He w-s stunned by the blow which felled him; he wes brought to the forward xaanx oar by one of his friends."
Also see in Williams vs. Pullman Company, 40 La. 87, where -the court held: "The earlier doctrine that, in general the a-- ster is liable for the fault or negligence of the. servant but not for bis wilful wrong or trespass has been greatly modified in modern jurisprudence which pieces the test of -the master's liability not on the motive of the servant or the charac-.. ter of the wrong hut in the inquiry whether the act done was something his employment contemplated end which if properly, end lawful! done would have been within the scope of his functions."
In the case of Vincent et ux vs. Morgan's La. and T. R. & S. S. Co. 140 La. Ann. p. 1037t "A master is liable in damages for any negligent or wanton, act of his servant [471]*471jreby another sustains-injury in his mind, body or estate, and that is committed in connection with the- purposes of hie employment."
"Though there is some afliot in the decisions aa to the liability of a corporation for the iaxtojaiss torts of its officers and'agents, the following propositions are supported By the wiejgfefc of authority) (l) us a general rule a corporation is lisble- like a natural person for the torts cf its officers or agent-- within-the scope ar epp rent scope of their authority. (3) It is liable for -a tort sc- committed although it involves a speoifio intent or malice for the intent or .nalioe o.f its officers mxdisxTaji may 'be imputed to it." Citing numerous authorities0
Stacs On an exception of no c-use of sotion, the allegations of the petition are to be taken-as true, and if taken s-s true plaintiff oould legally recover a judgment on them as prayed for, the exception should be overruled and the.parties referred to a trlel on the merits for the determination of their respective rights end obligations.
Goldsmith vs. Virgin, 133 Ann. p. 833.
The isxnaá learned counsel for the defendant in his able brief haa cited numerous authorities, some of which we have quoted from and others whioh we do not think it necessary to site,
"If a servant goes outside of his employment without regard to his services acting with- malice and wantonly causes damage to another, the master is not liable".
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Dinkelspiel; J
This is a damage suit.
The pertinent allegations of plaintiff’s petition are that on or about April 14th, 1931, at about seven P. ?4. on Eighth and Coliseum Streets, in this city, plaintiffs' minor son, for absolutely no cause or reason, wa3 brutally assaulted by William White, an employee of the said defendant partnership,' was acting within the scope of his authority. Averring further that said partnership aot as watchmen and private policemen for the purpose of guarding the houses of those who employ the said defendant partnership , and that Willism'White was one of its watchmen or employees or private' policemen, and was engaged in his duties as private policeman or watchman on that day and hour set forth, guarding the houses in the. vicinity of Eighth and Coliseum Streets. And alleging further that at the time mentioned the said William White, while in the discharge of his duty as private policeman or vfstohman and acting for and being employed by said defendant partnership, he met four or five boys, all about the age of petitioners' min- or 'son, on the street, where they had a right to be, on the Corner of Eighth and Coliseum Streets, there .being nothing suspicious abotit the boys end the boys being engaged in no mischief or violation of the law, just waiting to go book to sbhool to study, were not making any noise nor doing anything to render them suspicious, when without any cause or reason or provacation of any kind or character, the said William White brutally assaulted and beat petitioners' minor son, rendering him unconscious and inflicting the injuries hereinabove cong>lained of; and th't said William White was drunk and intoxioeted and ■ that one of the residents of the neighborhood, Hr. Westfeldt whose home this men, Wllliem White, was' supposed-.to b.e guarding, telephoned to said defendant flelling them that said William White was drunk and in no fit condition focxihdqtx for 'duty and to perform the servioes required-of him.
[469]*469The followed the usual allegation of suffering and the injuries alleged and prayer for a judgment.
To this petition defendants filed an.exception that petition disolosed no cause or righu of action against the defendant, Boylan's Detective Agenoy, and Protection Polioe, and preyed for judgment dismissing plaintiff's suit at their costs.
On the trial of the exception the Oourt • - sons orally assigned, considering the exception of '.v raise of action filed by the defendant to be well founu,. .. ....omissed plaintiffs' suit and rejected their demand at their costs.
Subsequently on motion for new trial the motion was overruled, and from that judgment there is this appeal.
The Civil Code, Art. 3517. "Liability for acts of others and things in our charge. We are responsible not only for the damage occassioned by our own act but for that which is oeused by the act of a person for whom we are en"bw enable or of the thing which we heve, in our custody."
Art. 3330 of the Civil Code provides: Masters end servants. Masters end employers are answerable for the damage oocassioned by their servants end overseers in the exercise of the functions in which they are employed.
■In the case of Williams vs. the Pullman Palace Company et sis, 40 Ann. 417, the questions presented snd decided were: 1st, Can .the Railway Co. be held liable for the e.ots of an employee of the Pullman Co. under any oironmsttnoes? 3~>,d, Was plaintiff a trespasser on the Pullman car when he was struck by the porter or was he entitled to the full protection of the Railway Company is one of its passengers?
And at page 419' the Court goes on to say in the body of its opinion: "The general principle is S3: well settled that to make one person responsible for the wggVfrggraey negligent or tortuous act of another, the relation of principal and egeht or master and servant must be shown to have [470]*470existed at the time and inrespeot to the transaction, between the wrongdoer and the person sought to be ohe.rged. The defendant relies upon the-absence of this relation between the porter >-nd the company as conclusive against its liability for his acts, but we a-re of the opinion th?-t this dsfantonixi defense is not ave liable to the defendant, or rather that the persons, in charge .pullman of .the/di»taeac»D«jac car are to be regarded and treated in respeot to their relations with passengers,, as the ser.ye.nts of defendant end the defendant is responsible for ’their e.cts¿ the the same extent s-s if they were directly employed by the company." And the Court there, cites authorities both from the Supreme Court of the United States, together vd.th the highest courts of many states of the union, in support of the doctrine announced.
And sxxias gain at page 433, "The preponderance of the -evidence on tho.t point although very conflicting shows to our entire satisfaction’that plaintiff did ask permission of the porter to wash his hands, and after an exchange of a few unpleasant words, the porter struok him on the head with >. blunt Instrument while plaintiff was standing on.the threshold of the pulmsn; osx. He w-s stunned by the blow which felled him; he wes brought to the forward xaanx oar by one of his friends."
Also see in Williams vs. Pullman Company, 40 La. 87, where -the court held: "The earlier doctrine that, in general the a-- ster is liable for the fault or negligence of the. servant but not for bis wilful wrong or trespass has been greatly modified in modern jurisprudence which pieces the test of -the master's liability not on the motive of the servant or the charac-.. ter of the wrong hut in the inquiry whether the act done was something his employment contemplated end which if properly, end lawful! done would have been within the scope of his functions."
In the case of Vincent et ux vs. Morgan's La. and T. R. & S. S. Co. 140 La. Ann. p. 1037t "A master is liable in damages for any negligent or wanton, act of his servant [471]*471jreby another sustains-injury in his mind, body or estate, and that is committed in connection with the- purposes of hie employment."
"Though there is some afliot in the decisions aa to the liability of a corporation for the iaxtojaiss torts of its officers and'agents, the following propositions are supported By the wiejgfefc of authority) (l) us a general rule a corporation is lisble- like a natural person for the torts cf its officers or agent-- within-the scope ar epp rent scope of their authority. (3) It is liable for -a tort sc- committed although it involves a speoifio intent or malice for the intent or .nalioe o.f its officers mxdisxTaji may 'be imputed to it." Citing numerous authorities0
Stacs On an exception of no c-use of sotion, the allegations of the petition are to be taken-as true, and if taken s-s true plaintiff oould legally recover a judgment on them as prayed for, the exception should be overruled and the.parties referred to a trlel on the merits for the determination of their respective rights end obligations.
Goldsmith vs. Virgin, 133 Ann. p. 833.
The isxnaá learned counsel for the defendant in his able brief haa cited numerous authorities, some of which we have quoted from and others whioh we do not think it necessary to site,
"If a servant goes outside of his employment without regard to his services acting with- malice and wantonly causes damage to another, the master is not liable".
And 9gain quoting from xneir briefs "An employer of a private we-tchinsn employed to guard property is not responsible for- the wilful or malicious, torts of that watchman whioh are committed on the streets or public highways os at places off of th‘e very premises whioh he is employed, to watch, and guard." Citing numerous authorities.
[472]*472The abstract propositions of law .doubtless are oorreot, but ve find on the other hond that in order to determine whether or not the servant, the employee, is'not within the soope of his duties, whether or not he wes footing rt the time of the aot either as a polioeman or otherwise, is a question of fs-ot which oan only be determined as other facts on the tri-1 of the oase on its merits, hence we oonolude without entering into further dlsouseion of this matter, whloh would lead to no useful purpose, that it would be in the Interest of justice to remand this oase to the court aquo, there to be heard and determined on all the facts to be presented to it both pro end con,- so that justice will be done.
For these reasons, it is ordered, adjudged and deoreed that the judgment maintaining the exception of no cause or right of aotion be annulled and reversed and this oase be remanded to the District Court to be there sisxsfc&sxai proceeded with according to law, the costs of the appeal to be paid by the defendant company, and the other costs to awátt the final determination of the trial of this oase.
-Judgment reversea and remsnded-