Birmingham Water-Works Co. v. Hubbard

SOMEBYILLE, J. The plaintiff was seriously injured by the accidental explosion of a quantity of powder dynamite and powder cartridges, which had been stored without permission in a black-smith shop, where the plaintiff was accustomed to work for the owner of the shop, one Haynes. The explosive material had been placed there the day previous, for preservation from damage by rain, by the act of one Bennefield, who was employed by the defendant company as foreman, or superintendent, of a number of men who were engaged in the company’s service to blast stone from a neighboring quarry. The plaintiff had expostulated with Bennefield about the matter, and he had promised to remove the powder before the commencement of work in the shop that day. The explosion occurred through sparks of fire thrown by scintillation from the anvil during the progress of work in the shop. It is contended in behalf of the defendant corporation, against which verdict and judgment for the sum of five hundred dollars were rendered in the court below, that the act of Bennefield in storing the powder in the shop, without first obtaining the owner’s consent, was not within the scope of his employment, and, for this reason, the defendant would not be responsible for any injury or damage resulting from it. The evidence shows that there was no express authority for doing the act, and no recovery was claimed on this ground. Nor is there any fact tending to show ratification on the part of any superior officer of the company. The question then resolves itself into the inquiry, whether the act of Bennefield, which produced the injury, incidentally grew out of any authority conferred by the defendant, as master, on Bennefield as servant. Can the act be fairly and reasonably implied as one authorized to be done by the servant in the master’s absence, and in the given emergency, in furtherance of the master’s business? Was it, in other-words, impliedly authorized as fairly within the scope of the [182] servant’s employment, as the trusted, custodian of the property, with the duty imposed on him to use all proper and reasonable means for its safe preservation? The master may often be held liable for the abuse of the authority conferred on a servant, or employee, and this liability sometimes extends to trespasses purposely committed. In such cases, especially where the implication of authority is doubtful, the inquiry may well be, whether the servant was, on the one hand, acting either maliciously, or in his own individual interest, or, on the other hand, bona fide, in preservation, or furtherance of the master’s interests. This test was adopted in Cosgrove v. Ogden, 49 N. Y. 255; s. c., 10 Amer. Rep. 361, which involved an injury resulting from a trespass incidentally committed by an agent in the prosecution of the business of the principal — a subject on which the law has undergone some modification in comparatively recent years. The doctrine of that case, in our judgment, is both just and sound, and is sustained by authority. — Wood on Master & Servant (2d Ed.), pp. 231-236, sec. 284; p. 567, sec. 300; Cooley on Torts, pp. 535-538. The charges of the court on this phase of the case fairly stated the law, and were not liable to any criticism. The court properly submitted the question of the plaintiff’s alleged contributory negligence to the jury, The evidence tends to show that Bennefield had promised the plaintiff to remove the explosive combustibles from the shop before the time of needing the premises for work; and we can not say, in view of this fact, that the conduct of the plaintiff, in failing to ascertain whether the promise had been complied with, before proceeding to use the smith forge on the day of the accident, was perse negligence. — Eureka v. Bass, 81 Ala. 200; s. c., 60 Amer. Rep. 152; City Council of Montgomery v. Wright, 72 Ala. 411; L. & N. R. R. Co. v. Allen, 76 Ala. 494. There is, in our opinion, no error in the record, and the judgment is affirmed.