Ross v. Cooper

164 N.W. 679, 38 N.D. 173, 1916 N.D. LEXIS 179

Opinions

Goss, J.

This is an appeal from the final judgment and from an order denying motion for judgment notwithstanding the verdict. Sufficiency of the evidence to sustain the verdict will be first inquired into.

The action arose out of the killing of James Franklin Boss on March 11, 1911, by McLain S. Cooper, the twenty-one-year-old son of defendant, Harry J. Cooper. Plaintiff is the widow of deceased. Boss, with his wife and family, had worked for defendant for more than two years, living on defendant’s farm. The homicide occurred on said farm in Traill county. Defendant was South for the winter, and at no time in controversy was present at, or had knowledge of, events transpiring and upon which this action is based. On leaving for the South for the winter defendant had told Boss that “McLain Cooper would be on the farm that winter; that he (defendant) would be too far away to communicate with, and if anything out of the ordinary came up to go to McLain; I wasn’t anticipating anything out of the ordinary coming up.”

Otherwise Boss was in charge as farm foreman. McLain Cooper had been on the farm prior to that winter and was there during that winter. On March 11, 1911, at about 7 o’clock in the morning, McLain Cooper discharged Boss after shooting three times at him. While Boss was afterward walking to the dwelling house some hundred yards away, McLain Cooper overtook him and, without warning, shot Boss through the back, mortally wounding him.

The complaint predicates liability upon the fact that the son had been left “to manage and control the operation of said farm, with full and complete authority and power to hire, employ, and discharge such servants, agents, and employees as he, McLain Cooper, might deem necessary and convenient; that on March 11, 1911, McLain Cooper in exercise of the power delegated to and vested in him by the defendant, did discharge Boss from the employment of the defendant, and while so exercising such power and authority and while Boss was peaceably preparing to leave, and without giving Boss the slightest chance to leave «aid farm and employment peaceably, proceeded to eject him therefrom ; and while so engaged, and while acting for defendant therewith in the scope of his employment, and exercising the powers and authority so conferred upon him, he, McLain Cooper, in utter disregard of the safety of said Eoss, did, without the slightest cause, excuse, or justification, with unnecessary violence wilfully, intentionally, maliciously, find unlawfully assault Eoss, and with force and violence shoot and mortally wound him, of which he died on August 6, 1911.”

Damages in the sum of $50,000 is demanded. A verdict for plaintiff for $3,500 was returned. The answer admits Eoss was the servant of the defendant, as superintendent of said farm, when killed, “and that after the 13th day of December, 1910, he so worked and labored under the charge and authority of said McLain Cooper by virtue of the employment of said McLain Cooper by his father, and that he so ■continued to render service until March 11, 1911.” The answer further admits “that on March 11,1911, McLain Cooper, in the exercise of the power delegated to and invested in him by Harry J. Cooper, did discharge Eoss from the employment of said Harry J. Cooper, and admits that on March 11, 1911, McLain Cooper did shoot and mortally wound Eoss. But defendant denies that said McLain Cooper proceeded to ■eject Eoss from said farm at the time, and denies that said McLain Cooper shot or wounded Eoss while engaged in ejecting Eoss from said farm, or while acting for Harry J". Cooper or within the scope of his ■employment, or while exercising any power or authority conferred upon him by this defendant or by virtue of his employment or agency.”

This presents the issues. In brief, the employment of both Eoss and McLain Cooper as employees of defendant, Harry J. Cooper, is admitted, as is the fact that the son had due authority to and did in the ■exercise thereof discharge Eoss from defendant’s employment. As defendant by his motion for judgment non obstamki has challenged the sufficiency of the evidence to sustain plaintiff’s cause of action on the merits, and asserts that it affirmatively discloses no cause of action, all the evidence bearing on the discharge will now be set forth.

Plaintiff’s case is made up of the dying declaration of Eoss, narrating his employment and events up to and surrounding the shooting. It reads:

“The way this trouble started on the 10th of March, 1911, this Jack Hulet was milking— ... lie was doing the milking, and we bad a cow that nobody could milk; I couldn’t milk ber, and be told McLain that be couldn’t. Just before dinner, McLain come to me and asked if I could send that cow down to tbe Sutton farm. I told bim, ‘After dinner,’ and so be came around after dinner and be says, ‘You don’t need to take tbe cow down.’ He said, ‘The kid would milk her;’ the kid is George. . . . And so when they started to milk be couldn’t do anything, and be couldn’t get no milk from ber, and McLain was helping bim and they couldn’t do anything and they was mad, jumping around there, but didn’t say. anything, and that is where you might say tbe row started. So, when I asked bim at Y o’clock if be wasn’t going to supper, be said ‘be would go when be damn pleased.’ My wife was around tbe bouse sick, and she didn’t feel like keeping meals all night, so be said be would get supper when be damned please, and be started toward tbe door and I started toward bim. He looked pretty mad and we clinched right at tbe door. We laid down on tbe ice a little bit, and I told bim, ‘If you want to get up and be a man and go in and get your supper, I will let you up,’ and finally be says, ‘all right.’ . . . When we bad this trouble, John Hulet come along, and be says, ‘Let up Frank.’ I says, ‘I ain’t hurting bim, any time be wants to get up and behave, I will let bim up.’ . . . During tbe trouble with McLain I didn’t strike bim. I choked bim a little, but it never made a mark on bim. I didn’t have any weapons with me at tbe time. I didn’t make any threats against bim at that time, not a thing, and I didn’t injure bim. I .bad the prettiest chance in tbe world if I wanted to, but I didn’t want to. I bad never made any threats against McLain Cooper during tbe time that I was there, and I bad bad no trouble with bim up to this time. He bad never asked me to leave tbe farm. I didn’t see bim again that night after be went to tbe Sutton farm. All that I did to bim was to put bim down on tbe ground and bold bim there. He didn’t get a scratch. I must have tbrowed bim. We were right at tbe door and be was making for me and I for bim and I catcbed bim. It was all ice and water and it wasn’t much of a trick to throw anyone there, it was so slippery there.....I didn’t throw bim over tbe fence, and didn’t injure bim a bit; there wasn’t a scratch on bim; I don’t think there was a scratch on me. I next saw McLain Cooper, after this scrap, about Y or Y :15 the next morning. We had breakfast at Y o’clock and we went out to the barn. I went back in the barn and got a pail of feed for the pigs, and when I come to the door, the barn door, I met the gun. McLain Cooper, the son of Harry J. Cooper, held that gun. He says,, ‘I am going to shoot you.’ He threw the gun in my face, and he said,, ‘I am going to shoot you, Frank.’ I says, ‘Go ahead and shoot’ — something like that, and I walked down a little further and I went into the other door and getting down to this door he shot at me twice — that is the sheep-shed door — he shot at me twice; when I got down to the sheep shed, he shot again. When he fired the third shot I was inside. Nobody said anything during the time that he was firing. The first two shots my back was to him and when I got to the shed I wouldn’t say. None of these shots hit me. The first two struck' the barn, I couldn’t swear to that. The only thing — there is witnesses that saw the bullet holes in the building, but I couldn’t say for I never got back to the barn. I think when the third shot was fired I was emptying the feed out. Hp to this time he never said a word. The only remark I heard was, ‘I am going to shoot you’ — that was the first thing. Then John Hulet hitched up the team and he was just going, around the corner of the bam and I got back there and I says, ‘Put your team in the bam,, Jack. It is getting too hot here for me.’ ‘Well,’ Jack says, ‘throw up your hands — why don’t you throw up your hands and find out what he wants.’ So I did; I throwed up my hands and I says, ‘What do you want?’ He says ‘I want you to leave the place.’ That is, McLain Cooper said that. I said, ‘I will get my coat and go.’ I didn’t make any threats against him at that time. I never made any 'threats against, McLain Cooper. I never used any weapon on him. I never had any trouble with him other than the trouble I have just referred to. During this time my wife was in the house, and she wanted to go to town that day; so when I started to the house to get my coat, I got about half way to the house and there is where he shot me, and she come around,, she had to come around the old bunk house to see where we were at the barn, you know, and she was going to find out about the team, and when she come around and looked up there, McLain was standing there looking at me with the gun in his hand; I was lying down then and he had shot me. That morning McLain Cooper and I and my wife and John Hulet, the witness who is now in jail, and my ten-year-old step •daughter and my boy, about six years old, were on the farm that morning. George wasn’t there that morning. When that last shot was fired, I was going to the house after my coat- — from the barn to the house — ■ I was about half way. McLain Cooper come along behind, and he was walking up on a kind of a ridge, and I got about half way to the house when he shot. He had the gun in his hand during all this time, every time I see him he had that gun in his hand. I didn’t see him shortly before he fired the last shot. I started for the house for my ■coat, and I got down quite a ways before he caught up with me, and I didn’t expect him to shoot or anything, and I wasn’t looking. Just as ■soon as he shot he walked around me, and he says, ‘I have plenty more— I have got plenty more;’ that is all he said. He fired four shots that morning to my knowledge and it was the fourth shot that dropped me. When I started for the house, John Hulet was putting the team in the barn. He had a team hitched up and he was putting them in the barn. 'The barn is, I should judge, about 75 yards from the house; it might be a little bit the other way. The barn is north and a little bit west ■from the house. I don’t think McLain Cooper remained on the farm •over five or ten minutes after he had shot me; until he got his team. I didn’t hear him say anything after the shooting, except what I have told, and I told him to tell Hulet to help me in the house, and I heard Mm. say to Hulet, ‘There is a fellow down there wants you to help him in the house.’ Just after the shooting my wife come out and she see him with the gun and she hollered to me, ‘Are you shot, Frank ?’ ■and I says, ‘Tes,’ and I says, ‘Phone for a doctor.’ I didn’t see whether McLain Cooper had the gun in his hand when I told him to tell John Hulet to help me in the house; he had the gun with him, he had no ■place to put it. We had no trouble that morning outside of this shooting — not a word — and he never asked me to leave the farm until that morning, and there never was a word in the world about settlement. . . . I was conscious shortly after I was shot- — I was always conscious, and I remember everything as well as I am sitting here. Hulet didn’t interfere when we had this scrap on the evening of the 10th; he just talked to us. McLain promised to be good and get his supper that night, and then I let him up immediately. There was nothing further said or done after we got up; there was no further trouble until I was shot. After this scrap McLain Cooper got up and went in the sheep .•shed for a few minutes, and be walked down to tbe bouse and stepped inside tbe door and walked out. Tbe two of them started toward tbe Sutton farm that nigbt; I couldn’t say whether they ever got there or not. . . . When be fired tbe shot that struck me and dropped me to tbe ground, he was walking behind me and a little bit to tbe left side. I was walking toward tbe bouse and be come up behind me; only a little bit on tbe left side. I don’t think be was over 10 feet .away from me when be shot. He didn’t say anything when be fired that shot; never said a word when be was walking behind me. I was going to the house to get my coat and leave tbe farm. I was going to take my coat and leave word for my wife to pack up and I would help move after tbe trouble was over. ... I made no threats against McLain ■Cooper when I went to tbe bouse from tbe bam that morning; there wasn’t a word spoken. I didn’t intend to get any weapon; I intended to get my coat and get out of there and leave, and that is all I intended io do. I never bad any trouble in particular with any of tbe men. . . . I never bad any trouble with McLain Cooper about tbe men. I beard tbe gun report when I dropped, at least that is what I thought I beard, you know. McLain Cooper was right behind me, and then be walked right around me. I went with my bead that way, and be walked right around me, and be says, I got plenty more.’ He bad tbe gun in bis band, and be is tbe one that shot me.”

Tbe court gave tbe following instructions:

“The liability of tbe master for intentional acts which constitute legal wrongs can only arise when that which is done is within tbe real or apparent scope of tbe master’s business.. It does not arise where tbe servant has stepped aside from bis employment to commit a wrong which tbe master neither directed in fact, nor could be supposed from -the nature of bis employment to have authorized or expected tbe servant to do; and where a servant steps aside from tbe performance of tbe business for which be was employed by bis principal and embarks upon a matter of bis own, tbe principal is not liable for tbe consequences of tbe agent’s act while so engaged. If, while engaged in tbe execution •of tbe employment of tbe principal, be so conducts himself, whether negligently or maliciously, so as to injure another, bis principal will be liable. If, however, be forsakes such employment, and purely, ^for bis own benefit or to gratify some personal bate, does an act uncon nected with the service of his principal, the latter — that is the principal —is not responsible for its consequences, and as applied to this case the sharp question of dispute which you are to determine is whether McLain S. Cooper while so employed as the agent of his father did step aside from the performance of the business for which he was employed by his principal, and embarked upon a matter of his own, either to avenge some supposed wrong, or for any other reason be that reason whatsoever it may, if it was unconnected with the business for which he was engaged and in which he was at the time acting. It will be for you to say in this case whether when McLain fired the fatal shot he was still in the act of discharging the man Eoss from the employment of his father. . . . The defendant claims that when Eoss said that he would leave that that of itself settled the matter and fixed the relations as between the parties, so that McLain had accomplished in full such discharge, and therefore any act after that statement on the part of McLain Cooper, and that point of time, could not have been in furtherance of his father’s business; while the plaintiff insists that such point of time does not mark the boundary line of McLain S. Cooper’s authority to act, but that the whole transaction was a part of an entire act of discharging said Eoss and occurred without giving the said Eoss the slightest chance to leave said farm and employment peaceably, but while ejecting him therefrom. This sharply disputed question of fact is for you to determine, — that is to say, from the evidence which has been offered'you are to conclude just when McLain S. Cooper was acting for his father within the scope of his employment, and when he acted for himself. ...”

“As I have said before if McLain Cooper forsook his employment purely for his own benefit or to gratify some personal hate, and shot. Eoss, then his father would not be liable. I cannot impress too strongly upon the minds of the jury that great importance of determining just when the act of discharge was complete, because this case must go one way or the other measured from such point of time; for, whenever the servant stepped aside from his master’s business for however short a time and committed a wrong not connected with such business, the relation of master and servant is suspended. ... If you find from the evidence, that at the time of the shooting Eoss, McLain Cooper was in the act of discharging Eoss, then I charge you as a matter of law that Harry J. Cooper is liable for the methods employed by McLain Cooper in so discharging said Ross.”

. These instructions are correct. But was there any substantial proof to warrant such instructions? If the evidence can be said to present-a basis for them, the verdict should stand; if not, it must fall.

With these issues in mind, the evidence will be scrutinized. It will be assumed here as it was assumed on trial, that the right to discharge Ross necessarily carried with it the right to use reasonable force to eject him from the premises if necessary, as a responsibility naturally following from the exercise of the right to discharge. Penas v. Chicago, M. & St. P. R. Co. 112 Minn. 203, 30 L.R.A.(N.S.) 621, 121 N. W. 026. Although upon this question there seems to be some conflict in the authorities, whether the presumption of right to use force can be indulged here without proof. Labatt, Mast. & S. § 2531. The question then resolves to whether Cooper killed Ross in discharging him from defendant’s employment, or an incident to effecting such discharge or in ejecting Ross from the premises afterward. If so, or if there is sufficient evidence to fairly warrant that deduction, the verdict must stand. But if McLain Cooper had no such intent, but merely executed his own design to injure, or without any definite purpose shot in reckless disregard of whether or not he killed Ross, the verdict should be set aside. And this, too, even though Cooper used as a pretense or as an excuse therefor his right and authority to discharge Ross. If the servant “is authorized to use force against another when necessary in executing his master’s orders, the master commits it to him to decide what degree of force he shall use; and if, through misjudgment or violence of temper, he goes beyond the necessity of the occasion and gives a right of action to another, he cannot, as to third persons, be said to have been acting without the line of his duty, or to have departed from his master’s business. If, however, the servant under guise and cover of executing his master’s orders, and exercising the authority conferred upon him, wilfully and designedly, for the purpose of accomplishing his own independent, malicious, or wicked purposes, does an injury to another, then the master is not liable. The relation of master and servant, as to that transaction, does not exist between them. . . . And when it is said that the master is not responsible for the wilful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury, not done with a view to ther master’s service, or for the purpose of executing his orders.” Rounds v. Delaware, L. & W. R. Co. 64 N. Y. 129—136, 21 Am. Rep. 597, 8 Am. Neg. Cas. 536, which is, as was said in Illinois C. R. Co. v. Latham, 72 Miss. 32, 16 So. 757, approved “as an admirable statement of the law.” This New York case has been quoted from and approved in Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N. D. 615, 47 L.R.A.(N.S.) 965, 135 N. W. 189; and see Clancy v. Barker, 69 L.R.A. 653, 66 C. C. A. 469, 131 Red. 161, 16 Am. Neg. Rep. 664, and hotel liability case. See also the well-reasoned case of Penas v. Chicago, M. & St. P. R. Co. 112 Minn. 203, 30 L.R.A.(N.S.) 627, 140 Am. St. Rep. 470, 127 N. W. 926.

"What, then, was McLain Cooper’s intent that morning in doing the things he did ? Is it a fair inference under the proof that he intended by such acts to accomplish the discharge of Ross, and that he shot Ross in furtherance thereof ? Or was he engaged in wreaking vengeance and doing Ross injury ? Giving full faith and credence to every statement in the dying declaration of Ross, it tends to entirely exculpate defendant from liability. He repeats that the slight difficulty of the night before the shooting was the first trouble he had ever had with young Cooper. Hence, it must be that Cooper had no reason for enmity and held no grudge against Ross, and that, as Ross asserts, the trouble really began that night. This comparatively trivial affair was the provocation and moving cause of the occurrence early next morning. Nothing intervened between the night before and 7 o’clock in the morning, when, as Ross says, he “ran into the gun” in the hand of Cooper, in the barn, accompanied with his threat, “I’m going to shoot you,”' followed with immediate action in execution of such declared intent by the taking of two shots at Ross while the latter’s back was turned toward him, as he was getting out of sight; pursuit followed, and an instant later a third shot was taken at Ross in the sheep shed. Ross then realized that young Cooper meant what he said when he declared he was going to shoot him. He in effect said so to Hulet in the words, “it is getting too hot here for me.” Hp to that time there had been no-attempt at discharge of Ross from defendant’s employment; not a word said about that, but instead his every move up to that moment evidenced a deliberate premeditated purpose and intent to do Ross great bodily injury. A felony had been committed by Cooper upon Eoss at this stage of -the proceeding, to wit, an assault with a dangerous weapon with intent to do great bodily injury, if not an intent to kill him. Were these facts before a trial jury upon indictment for such crime, the jury might properly be instructed that it must be presumed that Cooper intended the probable and necessary consequence of such unlawful acts. Up to this point it must be held as a matter of law unless, something subsequently occurred to otherwise characterize to the contrary the acts of Cooper, that he was not acting for the defendant nor in behalf of anyone except himself; that he had not his master’s business, in mind, but had acted independently and of his own malice, under a desire to avenge himself presumably of what Eoss did to him the night before. The motive actuating his conduct, the acts themselves, and the intent to be derived from them, and his statement, with all surrounding facts, clearly establish that at the commencement of the shooting and throughout his first attempt to do Eoss great bodily harm or kill him,, there was nothing upon which liability against his employer could be predicated. And during the following interval at the cessation of his first malicious attack with a deadly weapon, and upon the advice of the hired man, Eoss throws up his hands in acknowledgment of his helplessness and in token of his surrender, and inquiries of his assailant what is wanted, to which Cooper replies, “I want you to leave the place.” To this Eoss agreed and says, “1 will get my coat and go.” After an interval of time Eoss started for the house, as he says, to tell his wife to pack up and get ready to move. He had walked 160 feet,, nearly two thirds the way to the house, when without any warning or' another word spoken, with Eoss walking away from Cooper and with his back to him, Cooper overtook and shot Eoss through the middle of' the back with the first shot at that time fired. Eoss fell to the ground,. Cooper with the gun in hand walked around Eoss, and exclaimed to him,, “I have plenty more — I have got plenty more,” and Eoss says, “That is all he said.”

These are the facts as narrated by Eoss, and the only evidence bearing on the shooting. It establishes the commission of a cold-blooded deliberate killing with malice aforethought, with every ingredient present of murder in the first degree, including a deliberate and premeditated intent to kill; to do exactly what was done. 'The expression, “I have got plenty more,” is indicative of a frame of mind to shoot again if necessary a man already mortally wounded. It is contrary to fact and every reasonable presiunption to say that this was done in the execution of and in the furtherance of the master’s business, the mere discharging of Eoss from the master’s employment, or ejecting him from the premises or facilitating it. It is difficult to arrive at any conclusion upon any reasonable probability of purpose and intent in Cooper upon which it can be said that he intended to do any act toward discharging Eoss in thus shooting him. On the contrary every reasonable presumption from the evidence must be that Cooper was in a frenzy •of i’age imbued with bitter revengeful hatred, and maliciously bent on doing Eoss injury. With such intent, and for such purpose, he had armed himself during the night, and in the morning at once proceeded to do what he had set about, that is, injure or kill the party with whom he had quarreled the night before; and that in so doing he had no intent nor even thought about discharging Eoss.

It may be assumed, however, that when Eoss was told to leave the place Cooper was for the time exercising the powers of the master. It does not follow that, upon renewal of the malicious assault, that he was then continuing to perform the master’s business. The contrary is the record, Eoss says, “I started for the house for my coat, and got down •quite aways before he caught up with me, and I didn’t expect him to shoot or anything, and I wasn’t looking.” The map in evidence establishes the distance traveled during the interval as at least 160 feet. It was 159 feet from the nearest corner of the sheep shed to where Eoss fell. The situation is analogous to where a brakeman or conductor after ejecting a passenger leaves the train at such a distance and in pursuit of his own quarrel, maliciously assaults another. Such an assault is deemed to be the personal act of a servant, and not the act of the master. “Where an appreciable interval intervenes between the acts of protection which are exercised by persons in the guarding of property of their employers and a malicious assault which they afterwards commit, the assault will be deemed to be a personal act of the servant, and not an act of the employer.” Syllabus in Kinnonen v. Great Northern R. Co. 34 N. D. 556, 158 N. W. 1058, citing Spencer v. Kelley (C. C.) 32 Fed. 838; Roberts v. Southern R. Co. 143 N. C. 176, 8 L.R.A.(N.S.) 789, 55 S. E. 509, 10 Ann. Cas. 375, to which might be added Illinois C. R. Co. v. Latham, 12 Miss. 32, 16 So. 757; Firemen’s Fund Ins. Co. v. Schreiber, 150 Wis. 42, 45 L.R.A.(N.S.) 314, 135 N. W. 507, Ann. Cas. 1913E, 823. “There are numerous cases holding that an assault is to be deemed the personal act of the servant where there is an appreciable interval between the performance of the master’s work and the assault.” Annotator’s note in 9 L.R.A.(N.S.) 475. And there was here clearly such an interval between the order to Ross to leave the place and the homicide later and occurring 50 yards .away. And it must not be overlooked that the rule of exceptional liability of common carriers for servants’ acts toward patrons and guests is here absent. To recover, the doctrine of respondeat superior must apply. No good reason exists why, where the master’s liability hangs on a more slender thread under the doctrine of respondeat superior than in cases against common carriers for assaults upon its invitees, that the appreciable interval here present between the alleged act of discharge of the employee and the renewal by pursuit followed by assault, should not warrant the application of said presumption of law that under the facts the subsequent assault was but the personal act of the servant, and was not an act performed for the employer.

Most certainly it is a dangerous rule of perhaps far-reaching consequences that would be declared by this precedent should the employer be held in damages for this murder committed by the employee under the ■circumstances in evidence. It is going beyond all rules of liability to permit such a bare conjecture, that the homicide was done in furtherance of any duty to the master, to stand as a finding of fact, where as here a wilful, deliberated, premeditated killing resulted, and where ■every act done bespoke a defined purpose and intent in the assailant, born of his own malice to injure or kill another.

That the cause of the quarrel of the night before was the milking of the cow or delaying supper, and concerned the business of the master, is wholly immaterial. That business was a closed incident, having no relation in law to subsequent events, except as it furnished the motive .and engendered the hatred that gave vent in murder the next morning. Alabama & V. R. Co. v. Harz, 88 Miss. 681, 42 So. 201, and Lotz v. Hanlon, 217 Pa. 339, 10 L.R.A.(N.S.) 202, 118 Am. St. Rep. 922, 66 Atl. 525, 10 Ann. Cas. 731; Steffen v. McNaughton, 142 Wis. 49, 26 L.R.A.(N.S.) 382, 124 N. W. 1016, 19 Ann. Cas. 1227; Danforth v. Fisher, 75 N. H. 111, 21 L.R.A.(N.S.) 93, 139 Am. St. Rep. 670, 71 Atl. 535; all automobile chauffeur cases; McCarthy v. Timmins, 178 Mass. 378, 86 Am. St. Rep. 490, 59 N. E. 1038, where a three-minute “appreciable interval” absolved the master from liability. The cases cited by respondent, viz., Avondale Mills v. Bryant, 10 Ala. App. 507, 63 So. 932; McKeon v. Manze, 157 N. Y. Supp. 623; Scibor v. Oregon-Washington R. & Nav. Co. 70 Or. 116, 140 Pac. 629, all recognize the general rules of law here applied, but refuse them application under the particular facts of each case. Missouri seems inclined toward a rule of its own, one of extreme liability of the master in such cases. Whimster v. Holmes, — Mo. —, 164 S. W. 236 (another automobile chauffeur case). This is mentioned because much is said in respondent’s brief about the trouble beginning over the business of the master.

For the purposes of this decision placed upon the facts recited in the dying declaration, it has been assumed that such declaration is admissible in this civil action over all objections taken. Its admissibility is not determined, but is assumed as unnecessary of decision here. However, it may be observed that beyond all question the great weight of precedent is against the admission of dying declarations in civil cases. Against admission see Barfield v. Britt, 47 N. C. (2 Jones, L.) 41, 62 Am. Dec. 190; Jackson ex dem. Coe v. Kniffen, 3 Johns. 31, 3 Am. Dec. 390, in which Justice Kent participated; Thayer v. Lombard, 165 Mass. 174, 52 Am. St. Rep. 507, 42 N. E. 563; People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30; People v. Stison, 140 Mich. 216, 112 Am. St. Rep. 397, 103 N. W. 542, 6 Ann. Cas. 69; State v. Meyer, 64 N. J. L. 382, 45 Atl. 779; Daily v. New York & N. H. R. Co. 32 Conn. 356, 87 Am. Dec. 176, and other cases cited in extensive note in 56 L.R.A. 353, and Bionto v. Illinois C. R. Co. 125 La. 147, 27 L.R.A.(N.S.) 1030, 51 So. 98; and Yates v. Huntsville Hoop & Heading Co. — Ala. —, 39 So. 647 and Escalier v. Great Northern R. Co. 46 Mont. 238, 127 Pac. 458, Ann. Cas. 1914B, 468. For admission see Thurston v. Fritz, 50 L.R.A. (N.S.) 1167 and note (91 Kan. 468, 138 Pac. 625).

There was no issue of fact under the evidence upon which, under the instructions given and the law applicable, the defendant could be held liable for the consequences of young Cooper’s felonious conduct, and the motion for judgment notwithstanding the verdict should-have been granted. The judgment appealed from is ordered reversed, and judgment of dismissal is directed to be entered accordingly.