Bryeans v. Chicago Mill & Lumber Co.

WOOD, J., (after stating the facts). (1) Whether or not Breysacre, at the time he killed Bryeans, was acting within the scope of his employment was an issue, under the evidence, for the jury to determine. While the evidence is undisputed, it can not be said that all reasonable minds would draw the same conclusion from it. Griving the evidence its strongest probative value in favor of the appellant, which we must do in testing the ruling of the court directing a verdict against her, there was evidence to warrant the conclusion that Breysacre was acting-within the line of his duty when he told Bryeans that he would have to quit giving orders to the negro up there, and when he told him that he had been bothering the men in the shop; that this led to a controversy between Breysacre and Bryeans which resulted in the killing. In a word, there was testimony from which the jury might have found that Breysacre killed Bryeans while he was endeavoring to enforce the rule of the appellee requiring him to look after his department and to keep'people “from bothering the men, the-employees, while they were at work. ’ ’ The undisputed testimony shows that the act of Breysacre in telling Bryeans that he would have to quit bothering the men in the factory caused a dispute and angry words to pass between them, whereupon the assistant superintendent interposed, separated them and they quieted down in their talk, in fact stopped talking, and Shatz backed away from them, thinking it was all over. But in a second or two they started up the argument again, first talking in a low voice, then becoming more excited, and finally Bryeans told Breysacre that he would have to see Mr. Lange about it. Then Breysacre told Bryeans that Lange did not have anything to do with it, whereupon Bryeans called Breysacre a G-d-liar, and he replied in kind; then the shooting took place. Viewing the evidence in its strongest light in favor of the appellant, the jury would have been warranted in finding from this testimony that the killing was but the climax of the quarrel between Breysacre and Bryeans, which, although interrupted for a second or two, was in fact but one continuous quarrel caused by the act of Breysacre in reprimanding Bryeans, which act was in the line of Breysacre’s duty. On the other hand, the jury would also have been warranted in finding from the evidence that, although the quarrel was started by Breysacre while in the line of his duty, yet the quarrel was stopped by the assistant superintendent, and, in a second or two thereafter the quarrel was started or renewed by Bryeans telling Breysacre that- he would have to see Mr. Lange about it, and upon Breysacre’s reply that Langedid not have anything to do with it, calling Breysacre a Gr — —■ d-liar. These different views which reasonable minds might have drawn from the evidence made the issue as to whether or not Breysacre was acting within the line of his duty when he fired the fatal shot one of fact to be determined by the jury, and not one of law to be decided by the court. (2) If the quarrel which was started by Breysacre in telling Bryeans that he would have to stop bothering the men in the shop was continuous to the time of the killing, and the killing grew out of such quarrel, then Breysacre at the time of the killing was acting in the scope of his employment. But if the quarrel which was thus started had ceased for an appreciable interval, however short, and was then renewed through the fault of Bryeans and the killing was the result of the quarrel thus renewed by Bryeans, then Breysacre at the time of the killing was not acting within the scope of his authority. See 6 Labátt, Master & Servant, and cases cited. The effect of the instruction of the court was to hold as matter of law that the quarrel was not continuous, and that Bryeans instigated and renewed the quarrel that had ceased. Moreover, although Shatz testified that Breysacre was acting within the line of his duty when he told Bryeans that he must “stop giving orders to that negro,” and stop talking to the men, bothering them while they were at work in the shop, he also testified that Bryeans denied the charge. This made it a question for the jury as to whether Breysacre was endeavoring in good faith to enforce the rule of the appellee, or whether he had turned aside from his duty and the service of the appellee to serve his own individual ends by engaging in a mere personal controversy with Bryeans. If the latter was his purpose, then of course the .appellee was not liable. Therefore, as we view the evidence, the issue as to whether Breysacre was acting in the scope of his authority, at the time he killed Bryeans, was, as stated in the beginning, one of fact to be submitted to tbe jury under appropriate instructions. In one of the latest cases upon this subject we said: “No hard and fast rule has been or can be prescribed by which to determine what acts are within the scope of a servant’s employment. Each case is governed by its own particular facts, under certain general rules of law. Cooley says: ‘Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing tbe work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the-acts or omissions of the servant.” Cooley on Torts, 1032; 26 Cyc. 1536. Conversely, when the servant acts with reference to the services for which he is employed and for the purpose of performing the work of his employer, and not for any independent purpose of his own, but purely for the benefit of his master, it is generally held, under such circumstances, that the acts so done are within the scope of the servant’s employment. In the case of Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 402, we said: “The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, .and which it is his duty to perform, or be for the benefit of the master. It is therefore necessary to see in each particular case what was the object, purpose and end of the employment and what was the object and purpose of the servant in doing- the act complained of.” In St. L., I. M. & S. Ry. Co. v. Grant, 75 Ark. 579, we said: “It is well established that a principal is liable for all torts, negligence, or other malfeasance committed by his agent in the course of his employment, and for the principal’s benefit, although such torts or negligence are not authorized or ratified by the principal, or even though he had forbidden or disapproved of them, and the agent disobeyed or deviated from his instructions in committing them. If, from a consideration of all the facts and circumstances of the case, it is determined that the agent was acting for his principal, and in pursuance of his real or apparent agency, at the time the tort was committed, then it may he said that he was acting in the course of his employment, and the principal will he liable for such tort, whether authorized or not.” It is believed that these general principles of law, announced by this court, which are in conformity with the authorities generally, will enable the court to formulate a correct charge in submitting to the jury the issue as to whether Breysacre, at the time of the killing, was acting within the scope of his employment. The issue as to whether Breysacre was justified or excused in committing the homicide in so far as that issue concerns the appellee is not presented by this appeal. For the error indicated the judgment is reversed, and the cause is remanded for a new trial. HART and SMITH, JJ., dissent.