Gallop v. . Clark

CoNNOR, J. The defendants having abandoned, in their brief and in the argument upon their appeal to this Court, all exceptions except those based upon the refusal of the court to sustain the' motions for nonsuit, made at the close of the plaintiff’s evidence and renewed at the close of all the evidence (Rule 28, 185 N. C., 198), the only question presented to this Court is whether or not there was sufficient evidence to sustain an affirmative answer to the second issue, which was as follows: “If so, was defendant Lewark at the time acting within the scope of his employment by his codefendants ?” The defendant Lewark did not move for judgment of nonsuit, and did not appeal from the judgment appearing in the record. It was admitted by his codefendants that Lewark was employed by them as a guard and watchman upon their property, maintained by them as a hunting or game preserve. It was his duty to watch the marsh, and if any one trespassed, to ask them to leave. At the time the defendant Lewark, by his “wilful, wanton, or reckless conduct, caused the death of plaintiff’s intestate,” as found by the jury in their answer to the first issue, Lewark was in the performance of his duty as a guard, and the plaintiff’s intestate and -his companion, in a boat, with guns, at nightfall, when the wild geese and duck were flying to the marsh or shallow waters adjacent or contiguous to the property of the defendants, were waiting to get a shot at the wild geese and duck. Lewark was expressly authorized by his codefendants and employers to guard their property from such persons as were doing the very things that the plaintiff’s intestate and his companion were doing. It is true that neither of them had fired a gun, but there is evidence sufficient for the jury to infer that Lewark knew what their purpose was at the time he ordered them off and fired the fatal shot. The fact that Lewark, before shooting, ordered the plaintiff’s intestate and his companion to leave the place at which, they had stationed themselves, is evidence that Lewark regarded them as trespassers, whom it was his duty to warn, and against whom it was his duty to protect the property of the defendants. The liability of the defendants for the conduct of Lewark does not depend upon a finding by the jury that he was expressly authorized to perform his duty in guarding the property by a wilful, wanton, or reckless act. As Lewark was acting within the scope of his authority and was furthering the business of his employers, his employers are liable for the injury which he then inflicted upon Durwood Gallop by his *191 wilful, wanton, or reckless act, done in furtherance of the business for which he was employed by appellants.- Judge Devin, in a full, fair and correct charge to the jury, instructed them as follows upon the second issue: “A person is responsible, not only for his own acts, but for the acts of his employees and of his agents when they are done within the scope of their employment and in furtherance of the business which is entrusted to them. The test of the liability, in all cases, depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly implied from the nature of the employment and the duties incident to it. The simple test is whether they were acts within the scope of his employment — not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred; but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders. An act is within the scope of the servant’s employment where necessary to accomplish the purpose of his employment and intended for that purpose, although in excess of the powers actually conferred upon the servant by the master. The purpose of the act, rather than its method of performance, is the test of the scope of employment.” There was no exception to this instruction. Justice Walker, in Jackson v. Telegraph Co., 139 N. C., 348, says: “Whoever commits a wrong is liable for it, and it is immaterial whether it be done by him in person or by another acting by his authority, express or implied. Qui facit per alium, facit per se. Upon this maxim of the law is founded the doctrine that the principal is liable for the tort of his agent, and the master for the tort of his servant. If the wrongful act is done by express command of the master, or even if he has afterwards made it his own by adoption, there is no difficulty in applying the rule; but it is otherwise when the liability must proceed only from an implied authority. Where the servant does a wrong to a third person, the rule of respondeat superior applies, and the master must answer for the tort if it was committed in the course and scope of the servant’s employment and in furtherance of the master’s business.” This rule has been so often stated as the law of this State that it would seem unnecessary to cite authorities sustaining it. In Pierce v. R. R., 124 N. C., 93, Clark, C. J., says: “ ‘In the furtherance of the business of employer’ means simply in the discharge of the duties of the employment, and the court properly told the jury that the defendant is responsible for the injury if caused by the wrongful act of the employee while acting in the scope of his employment.” *192 In the same opinion the following is stated as the law: “"Where the act is within the scope of the servant’s authority, express or implied, it is immaterial whether the injury resulted from the result of his negligence or from his wilfulness and wantonness; nor is it necessary that the master should have known, that the act was to be done. It is enough if it is within the scope of the servant’s authority.” To make the master liable it is not necessary to show that he expressly authorized the particular act; it is sufficient to show that the servant was acting at the time in the general scope of his authority, and this although he departed from his instructions, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury. In Cook v. R. R., 128 N. C., 333, it is said: “If any servant, ‘acting in the general scope of his employment, wrongfully assaulted the plaintiff, and such wrongful assault caused the injury, the defendant is liable’ — that is to say, if the conductor, while acting as conductor, or the flagman or brakeman, while on duty as flagman or bralceman, wrongfully assaults one on the train, even though such person be a trespasser, and such wrongful assault is the proximate cause of the injury, the carrier is liable. ‘Acting within the general scope of his employment’ means while on duty, and not that the servant was authorized to do such acts.” In Butler v. Mfg. Co., 182 N. C., 547, Justice Adams cites and approves the statement made by Walker, J., in Daniel v. R. R., 136 N. C., 517, as follows: “It may then be gathered from the books as a general rule, which is clearly applicable to the facts of this case, that if the servant, instead of doing that which he is employed to do, does something else which he is not employed to do at all, the master cannot be said to do it by his servant, and, therefore, is not responsible for what he does. It is not sufficient that the act showed that he did it with the intent to benefit or to serve the master. It must be something done in attempting to do what the master has employed the servant to do. Nor does the question of liability depend on the quality of the act, but rather upon the question whether it has been performed in the line of duty and within the scope of the authority conferred by the master.” See Munick v. Durham, 181 N. C., 188; Clark v. Bland, 181 N. C., 112. Applying these rules to the evidence in this case, the jury was well justified in finding: (1) That Lewark was the servant or employee of his codefendants, and that his duty by virtue of this employment was to guard or watch the marshes and shallow waters adjacent or contiguous to the property which the said defendants maintained as a private shooting or game preserve. *193 (2) That at the time of the shooting, plaintiff’s intestate and bis companion were engaged, or about to engage, in the very acts wbicb it was the duty of Lewark, by virtue of bis employment, to prevent, to wit, shooting at the wild geese and dnck as they were flying from the open sound to the marsh and shallow water adjacent and contiguous to the property of defendants. (3) That at the time Lewark fired at the plaintiff’s intestate and his companion he was acting within the scope of his employment, to wit, guarding the defendant’s premises against persons who threatened to shoot wild geese and duck on the defendant’s premises. (4) That the conduct of the said Lewark in shooting at plaintiff’s intestate and his companion was in furtherance of his codefendants’ business for which he was employed, to wit, in protecting their property from trespass. (5) That while his act in shooting at plaintiff’s intestate and his companion was not expressly authorized by defendants, it was done in the scope of their employment and in order to accomplish the purpose for which he was employed, to wit, protecting wild fowl which were on, or about to come upon, the defendants’ premises to rest during the night, from plaintiff’s intestate and his companion. We are of the opinion that the exceptions to the refusal of the court to sustain the motion of nonsuit are not sustained, and that his Honor’s ruling was in accord with the law of North Carolina as frequently stated in opinions of this Court. It is therefore ordered that the judgment be and the same is affirmed. No error.