#### JOE A. SNOW v. SYDNOR DeBUTTS and ATLANTIC AND YADKIN RAILWAY COMPANY.

(Filed 13 October, 1937.)

1. Principal and Agent § 10—

A principal is liable for the torts of liis agent when expressly authorized, or when committed within the scope of his employment and in furtherance of his master’s business, and therefore within his implied authority, or when ratified by the principal.

2. Same — Scope of implied authority of agent.

The test to determine whether a wrongful act of an agent comes within his implied authority is whether the agent is acting within the scope of his employment and is about his master’s business, attempting to do what he was employed to do, and the intent or motive of the agent to secure a benefit for his employer or to protect his property is not controlling.

3. Same—

Acts done by the agent outside the scope of his employment, irrespective of intent, or which are done for the agent’s own purpose and in consummation of his personal desire, are not within his implied authority, and the principal may not be held liable therefor in the absence of ratification.

4. Same—

In determining whether an act is within the implied authority of an agent, there is a marked distinction between an act done for the purpose of protecting the principal’s property, or recovering it back, and an act done for the purpose of punishing an offender for an offense already committed.

5. Corporations §§ 20, 25 — Implied authority of general manager of corporation.

The term “general manager” implies general authority to conduct and control the business of the corporation within his charge as its principal officer, and to act for the corporation in emergencies, but does not include implied authority to punish for past offenses or to commit an assault from personal ill will or malice outside the scope of’the employment.

6. Principal and Agent § 10 — Evidence held insufficient to show that general manager had implied authority to assault plaintiff.

The evidence disclosed that plaintiff testified before the Corporation Commission in opposition to a railroad company’s petition to be allowed to discontinue certain train service, and before a legislative committee in opposition to a bill to give the Corporation Commission power to allow such discontinuances of service, that thereafter the railroad company’s general manager assaulted plaintiff after an altercation in regard to plaintiff’s activities. *Held:*Even conceding that the general manager had authority to supervise and direct the hearings before the Corporation Commission and the legislative committee, the general manager had no implied authority to assault plaintiff for testimony already given, even though he was prompted by his belief that such testimony was false and detrimental to the interest of the company.

*121*7.*Corporations § 25—

The fact that the general manager of a corporation assaulted plaintiff on property of the corporation does not alone impose liability therefor oh the corporation when plaintiff was present not as an employee or prospective customer, hut for his.own convenience. '

This is a civil action, tried before *Phillips, J.,*at tbe July Term, 1937, of Surry.

Eeversed.

Plaintiff was a mail carrier on tbe line of tbe corporate defendant and defendant DeButts was its general manager.

In May, 1931, tbe corporate defendant petitioned tbe Corporation Commission of North Carolina to be allowed to discontinue certain passenger trains, then being operated by it. There were a number of bearings before tbe Commission and tbe plaintiff, as a citizen of Mount Airy, appeared and opposed tbe petition and gave testimony in behalf of tbe respondents.

At tbe time of tbe bearings tbe Corporation Commission was not vested with authority to authorize tbe discontinuance of passenger trains when tbe convenience and necessity of tbe public did not require tbe operation of such trains. At tbe 1933 session of tbe Legislature a bill expressly conferring this jurisdiction on tbe Commission was introduced. There were bearings bad on this bill before tbe committee and plaintiff appeared and opposed it. Tbe bill was enacted and ratified prior to tbe occurrences which are tbe subject matter of this action. So far as tbe record discloses, there were no other bearings before tbe Corporation Commission.

On tbe evening of 16 May, 1933, plaintiff went to tbe station of tbe corporate defendant to meet a friend and while waiting for tbe arrival of tbe train a controversy arose between him and tbe defendant DeButts and tbe plaintiff was abused, insulted and assaulted by said defendant. There was ample evidence to sustain tbe verdict against tbe defendant DeButts and be did not appeal.

Tbe jury having found by its verdict that tbe defendant DeButts at tbe time of said assault was acting within tbe scope of bis employment as general manager of tbe Atlantic and Yadkin Eailway Company, judgment was entered against said defendant and tbe Atlantic and Yadkin Eailway Company appealed.

*Robert A. Freeman and A. E. Tilley for plaintiff, appellee.*

*Garter & Carter and Hobgood & Ward for defendant Atlantic and Yadkin Railway Company, appellant.*

BaeNhill, J.

Tbe one- question we need to discuss on this appeal is tbe liability of tbe appealing defendant on tbe judgment rendered *122against tbe individual defendant. If DeButts was not acting witbin tbe scope of bis employment and in furtherance of bis master’s business at tbe time of bis assault upon tbe plaintiff, tbis question must be answered in tbe negative and tbe other exceptive assignments of error become immaterial.

Tbe plaintiff described tbe setting' of tbe assault in substance as follows:

“I was standing right near tbe mail wagon; others were present; I was waiting there for Mr. Brower. Someone said, in a humorous way, that perhaps tbe train bad been discontinued. Tbe defendant DeButts was present. Someone asked the question: ‘Do you think tbe trains will be taken off?’ I replied that I did not think they would, because it was too important to tbe public from tbe standpoint of mail, express, and passenger service. About that time DeButts approached me and said: ‘Mr. Snow, when are you going to get your promotion ?’ I said: I am not going to get it. He said’: ‘You said you were going to be made chief clerk; you said it, didn’t you?’ I said: Yes, I thought I was going to get it, but another man got it. He said: ‘Why didn’t you get it ?’ I said: Another man got it. He says: ‘I know why you didn’t get it; you lied to tbe Corporation Commission; you lied to tbe Legislature.’ I said: Mr. DeButts, there is no reason why we should have any personal ill will towards each other. I have nothing against you. I did what I did simply because I thought it was my duty and I presume you did tbe same. He replied: ‘You are a G-d-liar. You are interfering with my business. I am trying to save money for tbe company and it is none of your business. . . .’ ” Tbe plaintiff then outlined tbe abusive language and conduct of tbe defendant DeButts, which amounted to an assault.

There is no bard and fast rule governing tbe application of tbe doctrine of *respondeat superior.*Tbe application of tbe doctrine depends upon tbe facts in tbe case under consideration. There are, however, certain general rules established by tbe decisions of tbis and other courts which govern its application.

A principal is liable for tbe torts of bis agent (1) when expressly authorized; (2) when committed witbin tbe scope of bis employment and in furtherance of bis master’s business — when tbe act comes witbin bis implied authority; (3) when ratified by tbe principal.

There is no contention in tbis case that tbe conduct of DeButts was expressly authorized, or that it was thereafter ratified by bis employer. If tbe corporate defendant is liable at all, it is by reason of tbe fact that DeButts was acting witbin tbe line of bis duty and exercising functions necessarily implied by tbe general nature of bis employment — that is, be was acting witbin tbe range of bis employment.

*123Tbe principles requiring the application of the doctrine are variously expressed.

It is elementary that the principal is liable for the acts of his agent, whether malicious or negligent, and the master for similar acts of his servant, which result in injury to third persons, when the agent or servant is acting within the line of his duty and exercising the functions of his employment. *Roberts v. R. R.,*143 N. C., 176.

If the wrongdoer, while acting in the range of his authority, does an act which injures another, the principal or in,aster is liable therefor without reference to whether the intent of the agent or servant was good or bad, innocent or malicious.

Liability exists as against the master for wrongful or negligent acts of his servant only when the agent is acting within the scope of his employment and is about his master’s business, attempting to do what he was employed to do.

“A servant is acting in the course of his employment when he is engaged in that which he was employed to do, and is at the time about his master’s business. He is not acting in the course of his employment if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interruption of the course of. employment as to suspend the master’s responsibility, but if there is a total departure from the course of the master’s business, the master is no longer answerable for the servant’s conduct.” Tiffany on Agency, page 270.

A principal is liable for assaults committed by its agent or servant only when the assault is committed while the agent or servant is about his master’s business and acting within the range of his employment, unless his conduct was thereafter ratified by the principal.

On the other hand, there are pertinent decisions holding that the principal under certain conditions is not liable.

The principal is not liable when the agent is about his own business, or is acting beyond the scope and range of his employment. This is true irrespective of the intent of the agent.

A master is not responsible for the torts of his servant committed wholly for the servant’s own purpose and in consummation of his personal desire. *Linville v. Nissen,*162 N. C., 95; *Roberts v. R. R., supra.*

A master cannot be held liable for the unauthorized act of a servant on the ground that the servant did the act with the intent to benefit or serve the master. *Daniel v. R. R.,*136 N. C., 517; *Marlowe v. Bland,*154 N. C., 140.

'Nor is a master liable when his servant steps aside from the master’s business to commit a wrong not connected with his employment. *Marlowe v. Bland, supra; Dover v. Mfg. Co.,*157 N. C., 324; *Bucken v. R. R.,*157 N. C., 443.

*124If an assault is committed by the servant, not as a means or for the purpose of performing the work he was employed to do, but in a spirit of vindictiveness, or to gratify his personal animosity, or to carry out an independent purpose of his own, then the master is not liable. 39 C. J., page 1307; L. R. A., 1918 F, 534; 10 A. L. R., 1079; *Jackson v. Scheiber,*209 N. C., 441.

It is a well established rule that the master is not responsible for the tort of his servant when done without his authority and not for the purpose of executing his orders or doing his work, but wholly for the servant’s own purpose and in pursuit of his private and personal ends. *Bucken v. R. R., supra; Linville v. Nissen, supra.*

Ordinarily, the intent of the agent, or his purpose to promote the interest or protect the property of his principal, is not a determining factor.

It is immaterial that the employee intended by such act to secure a benefit for the employer. *Lamb v. Charles Stores Co.,*201 N. C., 134. Liability of the principal, or the master, depends not upon the motive of the agent, or the servant, such as his intent to benefit his employer or to protect his property, but upon the question whether in the performance of the act which gave rise to the injury the agent or the servant was at the time engaged in the service of his employer. *Dickerson v. Refining Co.,*201 N. C., 90. It is not sufficient that the act shows that he did it with the intent to benefit or 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 authority conferred by the master. *Daniel v. R. R., supra.*There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony, or recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. *Daniel v. R. R., supra.*This view is expressed in *Kelly v. Shoe Co.,*190 N. C., 406, by *Yarser, J.,*as follows: “Liability does not flow from the employee’s intent to benefit or serve the master, but it does flow from the acts of the servant, or employee, in attempting to do what he was employed to do, that is, the acts complained of must have been done in the line of his duty, and within the scope of his authority.” *Butler v. Mfg. Co.,*182 N. C., 547; *Munick v. Durham,*181 N. C., 188; *Clark v. Bland,*181 N. C., 112, and the line of cases cited in these authorities.

The general scope of the authority of the defendant DeButts was very broad. The term “general manager” implies the right to exercise judgment and skill, and the idea that the management of the affairs of the company has been committed to him with respect to the property and *125business of tbe corporation. It implies general power and permits a reasonable inference that be was invested witb tbe general conduct and control of tbe defendant’s business committed to bis charge. Tbe term carries witb it tbe implied authority to act in emergencies, or generally, as tbe principal officer of tbe corporation in reference to tbe ordinary business and purposes of tbe corporation in tbe conduct of its affairs, within bis charge. *Whipple v. Insurance Co.,*222 N. Y., 39; *Gas Light Co. v. Lansden,*172 U. S., 534; *Kelly v. Shoe Co., supra.*It does not, however, include tbe implied authority to punish for past offenses or to assaults committed outside tbe scope of employment and not in tbe range of tbe servant’s duties, prompted by tbe personal ill will or malice of tbe employee.

We must then examine into tbe implied powers and duties of DeButts to determine whether tbe act complained of could reasonably be interpreted as coming within tbe implied powers conferred upon him and whether be was at tbe time engaged in tbe discharge of bis duties to bis employer, so as to determine tbe liability of tbe corporate defendant upon tbe verdict rendered.

While it is a matter of common knowledge that tbe trial of legal actions and tbe conduct of judicial bearings of tbe type indicated is ordinarily committed by public service corporations to its legal staff, we may concede that it was within tbe implied authority of DeButts, as general manager, to supervise and direct tbe bearings before tbe Corporation Commission and tbe committee of tbe Legislature. Tbe possession of such a broad range of authority could not reasonably be interpreted to embrace tbe direction, control, intimidation, or coercion of witnesses of the adversary. *A fortiori,*an agent of tbe corporation, however broad bis authority may be, cannot be said to be acting within tbe scope of bis employment or about bis master’s business when be undertakes to'take to task, abuse, and assault a witness of tbe adversary who has already testified, when prompted by bis resentment generated by bis conception that tbe testimony of such witness was false and detrimental to tbe interest of bis principal.

Applying tbe principles enumerated in these decisions to tbe testimony in tbe instant case, we are constrained to bold that tbe evidence fails to show that DeButts was acting within tbe range of bis employment and was about bis master’s business in assaulting tbe plaintiff, but rather that be was acting in a spirit of vindictiveness to gratify bis personal animosity. Tbe wrong was not committed under such conditions as would invoke tbe doctrine of *respondeat superior,*and no liability attaches to bis principal for tbe resulting injury.

Tbe conduct on tbe part of DeButts was reprehensible and inexcusable. To bold, however, that the corporate defendant bad impliedly *126authorized its agent to pursue the course be did and that such conduct was within the range of his employment without any evidence of authority, ratification, or approval, would he to imply that this defendant had embarked on a course of dealings in direct conflict with accepted proprieties in judicial proceedings, and that it imposed upon its agent .duties which give evidence that it is devoid of any sense of responsible citizenship.

It does not clearly appear from the evidence that the assault occurred on the premises of the defendant. Even so, the plaintiff was present, not as an employee or prospective passenger, but for his own convenience to meet a fellow mail carrier. Under these circumstances, if the assault was committed on the premises of the defendant, that fact alone would not impose liability on the defendant. *Strickland v. Kress,*183 N. C., 534; *Sawyer v. R. R.,*142 N. C., 1.

The exception of the defendant railroad company to the refusal of the general county court to dismiss plaintiff’s action as against it as of nonsuit should have been sustained. The judgment as against the appealing defendant is

Reversed.