The Evansville and Crawfordsville Railroad Company v. Baum. Story on negligence in the course of his employment. Agency, § 308, and cases cited in the note. Richmond, &c. Co., v. Vanderbilt, 1 Hill 480, S. C.; Vanderbilt v. The Richmond Turnpike Co., 2 Comst. 479; Wright v. Wilcox, 19 Wend. 343; Hibbard v. New York and Erie R. R. Co., 15 N. Y. 455; Illinois Central R. R. Co. v. Downey, 18 Ills. 259; Tuller v. Voght, 13 Ills. 277; Johnson v. Barber, 5 Gilman, 425. It is not to be understood, however, that the master is never liable for the willful and malicious acts of the servant, unless he has directed those specific acts to be done. The rule is not so broad as that. If the act of the servant complained of was necessary to be done to accomplish the purpose of the servant's employment—if it was essential as a means to attain the end directed by the master, and was intended for that purpose, then it was implied in the employment, and the master is liable, though the servant may have executed it willfully and maliciously. But when it is unnecessary to the performance of the master's service, and not really intended for that purpose, but is committed by the servant merely to gratify his own malice, though under pretense of executing his employment, it is not done to serve the master, and is not, in fact, within the scope of the employment, and the master is, therefore, not liable. Gregory v. Piper, 9 B. & C. 591; Croft v. Alison, 4 B. & Ald. 590. Under the circumstances last enumerated, it is not easy to perceive, in the nature of things, any just reason for holding the master responsible. It will not do to say that he shall answer in damages, because, by employing the servant, he gives him opportunity to maltreat those with whom he comes in contact in discharging his duties. That reason would hold the shopkeeper for any outrage committed by his clerk upon a customer; the mechanic for the like conduct of his journeyman; and, indeed, it would be equally applicable to almost every department of business, in the conduct of which it is necessary or convenient to employ assistants to deal with the public. Even the innkeeper, whose cook feloniously mingles poison with the The Evansville and Crawfordsville Railroad Company v. Baum. food of a guest, must then respond in damages for the injury. Nor will sound policy maintain the application of a rule of law to railways or corporations, on this subject, which shall not be alike applied to others, as has been intimated in some quarters. The suggestion is not fit to be made, much less sanctioned in any tribunal pretending to administer justice impartially. 7 Eng. L. & E. R. 549. Standing in opposition to the law thus settled by innumerable cases, only a few of which we have deemed it necessary to cite, is. the case of The Pennsylvania R. R. Co., v. Vandiver, 42 Penn. St. R. 365; 15 Ark. 118; and a dictum in Seymour v. Greenwood, 30 Law J. (Exch.) 189, with the observations in Redfield on Railways, 380, note. The Pennsylvania case seems to have been based on a dictum of the Chief Baron' in Seymour v. Greenwood. The point was not involved in the latter case, and the remark upon it cannot, therefore, be regarded as authority. It is quite probable, from an examination of the opinion in the Pennsylvania case, that the authorities upon the subject were not very fully considered by the court, for they are not reviewed or alluded to. The Arkansas case cites no authority in its support. Mr. Redfield's discussion evinces an evident misapprehension of the scope of Lord KENYON's opinion in the leading case of McManus v. Crickett, and of the point actually involved. It is true that that case might have been disposed of solely upon the point, merely technical, that trespass would not lie against a master, for the act of the servant. But the court proceeded further, as it might properly, and passed upon the question whether the master was at all liable for the willful act of the servant, done without his direction or assent. This has ever since been so understood by elementary writers, as well as by the courts of England and this country. The decision then made has been so long followed, and so uniformly deemed to settle the law upon the question, that its correctness cannot now be regarded as open for discussion. The Evansville and Crawfordsville Railroad Company v. Baum. What has been said disposes also of the question made upon the action of the court in sustaining a demurrer to the first paragraph of the answer, which alleged that it was no part of the servant's duty to remove persons from the car, and that the expulsion, beating, &c., were done by him willfully, and of his own malice. But the expulsion of the plaintiff from the car, where he lawfully was, and had a right to be, as appears by the first paragraph of the complaint, if done without unnecessary violence, would give him a right of action; and this might have been proved under the allegations of that paragraph. We think, therefore, that the demurrer to it was properly overruled. The second and third paragraphs of the answer were addressed to the second paragraph of the complaint, and admit a refusal by the defendant's servant to carry, but allege that he had no authority to do so, and that the defendant, having learned of such refusal, offered to carry the plaintiff on the same train, and on any of its trains since. We perceive no reason why these paragraphs were not good, and none is suggested. It seems to us that it was error to adjudge them bad on demurrer. But inasmuch as a general denial was subsequently filed, under which the facts alleged in each of the paragraphs of the answer already alluded to would have been admissible in evidence, we would not reverse the case in consequence of the action had upon the demurrers to those paragraphs. The evidence is in the record, and utterly fails to make a case against the defendant. It falls far short of sustaining even the allegations of the first paragraph of the complaint, as to the assault and battery, (which we have seen were insufficient, if true), for there was not only no proof that the servant who committed the outrage had general charge of the car, but the contrary was distinctly shown, and that it was no part of his duty to interfere with per The Lafayette and Indianapolis Railroad Company v. Adams. sons seated within it. Under such circumstances the verdict should have been promptly set aside. The judgment is reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial. A. Iglehart, for appellee. J. M. Shackelford and C. Denby, for appellee. THE LAFAYETTE and INDIANAPOLIS RAILROAD COMPANY V. NEGLIGENCE. RECKLESSNESS.-Where the negligence of the defendant is so APPEAL from the Boone Circuit Court. FRAZER, J.-This was a suit by the appellee against the appellant to recover damages for an injury resulting from having been run against by one of the appellant's locomotives, passing upon its railroad. It was alleged in the complaint that the railroad passes through a strect in Thorntown; that on account of the populousness of the town, and the number of persons continually passing along the street, it was the defendant's duty to run its locomotives slowly and with great care; that on, &c., the plaintiff was passing along said street, as she lawfully might, when a locomotive of the defendant's was also passing the same place; that said locomotive was not run slowly and with care, but, on the contrary, at an undue The Lafayette and Indianapolis Railroad Company v. Adams. speed of about twenty-five miles an hour, and negligently and recklessly, by reason of which, and "without negligence on the part of the plaintiff," she was run over and injured, &c. A demurrer to the complaint was overruled. An answer in four paragraphs was then filed: 1. General denial. 2. Admitting the injury, but denying gross negligence and recklessness in running the train, and alleging that the plaintiff was, at the time when, &c., guilty of negligence and carelessness which contributed to the injury complained of, in this, that the defendant only occupied at the time when, &c., a part of said street in said town with the track of the railroad, leaving ample room on the street sidewalks for the plaintiff to pass and repass along and over the street, without risk or danger, &c.; that at the time when, &c., the defendant was lawfully passing along and over the track of the road, on said street, a train of cars propelled by steam; that the plaintiff, notwithstanding she was at the time when, &c., deaf, (a fact wholly unknown to the defendant,) placed herself carelessly and recklessly on the track of the railroad on said street, and was carelessly and recklessly passing along and over the track of said railroad, when she might and ought to have passed along that portion of said street not occupied by said track; that at the time when, &c., the defendant gave the usual signals, by ringing a bell, &c., and the plaintiff was in the apparent act of getting off the track, so as to induce the belief on the part of the defendant's servants, in charge of the train, that the plaintiff had cleared said track, until it was too late to stop the train; by means whereof the plaintiff, by her own wrongful act, contributed to the injury complained of. 3. That the plaintiff, by her own carelessness and recklessness, contributed to the injury complained of, without any recklessness or gross neglect on the part of the defendant. 4. That the plaintiff, at the time when, &c., by her own wrongful act, contributed directly to the injury complained of. There was a reply of general denial. |