Robinson Ex Rel. Robinson v. McAlhaney

*182 BarNhill, J. Tbis cause came on to be beard in tbe court below on questions of law raised by tbe defendants’ exceptive assignments of error as provided by tbe act creating tbe general county court of Buncombe County. There were 47 assignments of error made by tbe defendants upon their appeal from tbe general county court. Of these tbe court below sustained twenty-five and overruled tbe others. In tbe instant case tbe court below acted as an intermediate court of appeals and it was necessary for it to rule upon all of defendants’ assignments of error. However, it is not necessary for us to discuss all of tbe questions presented on plaintiff’s appeal. Disposition of two of tbe assignments of error requires tbe affirmance of tbe judgment below. Tbe others may not again arise on tbe retrial of tbe cause. Tbe judge of tbe general county court declined to instruct tbe jury as requested by tbe defendants as follows : “Tbe court charges tbe jury that where tbe servant steps aside from bis master’s business for however short a time to commit a wrong not connected with such business tbe relation of master and'servant will be deemed for tbe time suspended and that tbe master is not liable therefor.” Instead, on tbis aspect of tbe case, tbe court charged tbe jury: “Now, if you find from tbe evidence by tbe greater weight, tbe burden being on tbe plaintiff to so satisfy you that at tbe time the assault was committed the defendant Hewitt, was acting under tbe direction and authority of tbe defendant McAlhaney, either express or implied; that'is, tbe circumstances may be such as to warrant an implication that be was acting under bis authority if be saw him there working and did not stop him, or if be saw him about to commit tbe assault and did not interfere and intervene to prevent it tbe law would imply that tbe defendant Hewitt was acting for him. Or, if you find from tbe evidence, and tbe greater weight of tbe evidence, that be was expressly instructed, as tbe plaintiff contends that be was, to help these furniture men move tbe furniture into tbe cabin, then be would be acting within tbe scope of bis employment and that would constitute him tbe agent for tbe purpose of helping to move tbe furniture in and would authorize you to answer tbe issue ‘Yes.’ ” Tbe master is liable for tbe negligence and for tbe malicious torts of bis employee whenever such wrongs are committed by tbe employee in tbe course of bis employment and within its scope. Ange v. Woodmen, 173 N. C., 33, 91 S. E., 586; Jackson v. Telephone Co., 139 N. C., 347, 51 S. E., 1015; Munick v. Durham, 181 N. C., 188, 106 S. E., 665. Tbe decisive question is: “Was tbe agent’s act in tbe course of bis employment and whilst about tbe master’s business?” No ironclad test can be given, but in all cases tbe question whether tbe act was committed by tbe servant in tbe service of bis employer or for bis own purpose is one for tbe jury in view of all tbe circumstances. "Wood, Master and Servant, *183 594; Hussey v. R. R., 98 N. C., 34, 3 S. E., 923; Daniel v. R. R., 117 N. C., 592, 23 S. E., 327. Tbe 'master is not liable for tbe resulting damage when bis servant steps aside from tbe master’s business to commit a wrong not connected witb bis employment. Marlowe v. Bland, 154 N. C., 140, 69 S. E., 752; Dover v. Mfg. Co., 157 N. C., 324, 72 S. E., 1067; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137; Snow v. DeButts, 212 N. C., 120; Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Roberts v. R. R., 143 N. C., 176, 55 S. E., 509. To charge a third party witb liability for tbe wrongs of another it must not only appear that tbe one who committed tbe wrong was in fact tbe agent or employee of tbe third party, but it must also be shown that at tbe time tbe wrong was committed tbe wrongdoer was about bis master’s business and acting within tbe range of bis employment, unless bis conduct was thereafter ratified by tbe principal. Snow v. DeButts, supra, and cases there cited. Tbe test is: Was it done within tbe scope of bis employment and in tbe prosecution and furtherance of tbe business which was given to him to do? If an assault is committed by tbe servant, not as a means or for tbe purpose of performing tbe work be was employed to do, but in a spirit of vindictiveness or to gratify bis personal animosity or to carry out an independent purpose of bis own, then tbe master is not liable. 30 C. J., 1307, L. E. A., 1918 F, 534; 10 A. L. E., 1079; Jackson v. Scheiber, 209 N. C., 441, 184 S. E., 17; Snow v. DeButts, supra. There was conflicting evidence as to whether Hewitt was an employee of McAlhaney in assisting in tbe removal of property from tbe cabin, and as to whether tbe defendant McAlhaney knew that Hewitt was in fact assisting tbe truckmen. It was for tbe jury to determine whether Hewitt at tbe time was a servant and employee of McAlhaney and was about bis master’s business. It was likewise a question of fact for tbe jury as to whether, even though Hewitt was at tbe time a servant of McAlhaney, be acted within tbe scope of bis authority and was about bis master’s business in assaulting plaintiff, or stepped aside from bis employment to commit a wrong prompted by a spirit of vindictiveness or to gratify bis personal animosity or to carry out an independent purpose of bis own. Neither tbe fact that be was there working and McAlhaney did not stop him, nor tbe fact (if it be such) that McAl-haney saw him about to commit tbe assault and did not interfere and intervene to prevent it, establishes as a matter of law that Hewitt was acting for McAlhaney in committing tbe assault as tbe charge of tbe court clearly implies. Nor does proof that Hewitt was authorized to assist in tbe removal of tbe furniture necessarily require tbe conclusion that be .was about, bis master’s business in committing tbe assault. This is a question for tbe jury. It follows that there was error in declining to give tbe prayer requested by tbe defendant, as well as in tbe quoted portion of tbe charge. *184 Tbe court likewise charged the jury on the fourth issue: “If you find that the assault was committed under circumstances of oppression or rudeness, then it would be your duty to answer the issue in some amount, whatever you consider, based on all the evidence, would be fair and reasonable under the circumstances, not to be arbitrary, to act only upon the evidence which you have heard.” The court below correctly ruled that this charge constituted prejudicial error. A jury is never compelled to award punitive damages. If the evidence is such as to support an award of punitive damages it is still discretionary with the jury as to whether such damages will be allowed, subject only to the inherent power of the court to set aside an excessive or disproportionate award. As said in Hayes v. R. R., 141 N. C., 195, 53 S. E., 847: “This Court has said in many cases that punitive damages may be-allowed, or not, as the jury sees proper, but they have no right to allow them unless they draw from the evidence the conclusion that the wrongful act was accompanied by fraud, malice, recklessness, oppression, or other willful and wanton aggravation on the part of the defendant. In such cases the matter is within the sound discretion of the jury.” Knowles v. R. R., 102 N. C., 59, 9 S. E., 7; Smith v. Ice Co., 159 N. C., 151, 74 S. E., 961; Motsinger v. Sink, 168 N. C., 548, 84 S. E., 847; Huffman v. R. R., 163 N. C., 171, 79 S. E., 307; Cobb v. R. R., 175 N. C., 130, 95 S. E., 92; Ford v. McAnally, 182 N. C., 419, 109 S. E., 91. Plaintiff’s exceptive assignments of error cannot be sustained. The court below will remand the cause to the general county court of Buncombe County for a new trial upon all the issues except the first. Affirmed.