
    CRIMINAL LAW — MASTER AND SERVANT.
    [Allen (3d) Circuit Court,
    November Term, 1905.]
    Norris and Vollrath, JJ.
    John D. Blakely v. Greer et al.
    •Corpoeation Liable for Wrongful Shooting by its Agent within Scope op his Employment.
    A petition which alleges that a railway station agent had been furnished with a revolver by the companies employing him, for the purpose of protecting their grounds and buildings from unlawful intruders, and that such agent mistaking the plaintiff, who was on the railway grounds on lawful business, for a trespasser, wrongfully and negligently shot and injured him, states a good cause of action against such companies, as the negligent act of the servant was clearly within the scope of his authority.
    [Syllabus approved by the court.]
    Error to Allen common pleas.
    (Names of counsel not furnished.)
   VOLLRATH, J.

The plaintiff in error filed his amended petition in the common pleas court against Hayes Greer, the Lake Erie & Western Railway Company, the Western Union Telegraph Company and the United States Express Company, and avers in substance that the defendant, ■Greer, is the servant and agent of the other defendants and was such ■on the night of December 13, 1901, in the common office of said defendants in the passenger depot building of said railway companies at the village of Bluffton, Ohio, and engaged within the scope and line of his duties, as such agent in charge of said office, etc. That prior to, and at, the time aforesaid, said Greer as such servant and agent aforesaid, had been, and was, armed by the direction, and with the consent, of said last named defendants with a deadly weapon, to wit, a loaded revolver, which had been furnished to said Greer by the other defendants above named, for the protection of their said servant and their property interests entrusted to his care. That Greer at said' time and long prior thereto, was of a very nervous and excitable nature* or disposition and reckless in his conduct and an improper and excitable person or servant to be so entrusted and charged, — all of which facts were known, or could have been known, to said defendant companies but were all unknown to plaintiff. That, notwithstanding the •said facts and knowledge and notice, said defendant companies left-said depot building and common office, etc., in charge of said Greer, and armed him, and permitted him to be armed, and assented to his being armed, with a deadly weapon and in the night season and in said office and station and for the purpose aforesaid.

Said depot, building, and passenger room therein were lighted and-the doors thereof unlocked in the night season and open for business, and that on thé night of said December 13, 1901, while the said Hayes Greer, as such servant and agent of said defendant companies, was engaged in the line and scope of his duties 'and authority for said defendant companies, in charge of their said .common office and while acting for said defendants in transacting their business, caring for, and' looking after, and protecting, their property interests, plaintiff' . entered said passenger depot on lawful business, holding a lantern in one hand, and- that just after entering the door of said passenger depot for the purpose aforesaid while in the act of crossing the same, said defendant, Hayes Greer, then in said building and engaged as aforesaid and while acting for said defendants, within the scope of his authority and line of business for said defendant companies and as their agent and servant, suddenly, without warning or notice, recklessly, wrongfully and negligently, discharged said loaded revolver at the plaintiff, shooting and seriously wounding the plaintiff in the left shoulder ánd arm and causing severe injury and pain.

Plaintiff claims to have suffered great loss and to be permanently-injured. Plaintiff further claims that said injury thus caused was so caused by the joint and concurring negligence of each of said defendants and asks for judgment therefor in the sum of $20,000.

To this amended petition, a general demurrer was interposed by the defendants, which demurrer was sustained by the court of common pleas and plaintiff not desiring to plead further, said amended petition was dismissed as to said defendant companies at- the costs of the plaintiff. Judgment was rendered accordingly and this proceeding is prosecuted here to reverse said "judgment of the court of common pleas.

It is claimed by the plaintiff in error that the common pleas court erred in sustaining said demurrer and we think that this contention is well founded. The petition avers that the deadly weapon with which the mischief was done was given to the defendant, Greer, by said defendant companies for the purpose of being used against improper intruders or, in other words, to protect said building and business in-térests. Presumably this meant robbers, or burglars, or anyone that might seek illegally to trespass upon the property rights of the defendant companies. The revolver was given to Greer to be" used for the very purpose for which he thought that he did use it, to wit, to shoot unlawful intruders.

That Greer made a mistake in directing his attack against Blakely does not alter the material facts in the case, that this gun had been entrusted to Greer to shoot with- and to be used/ if necessary,' against human beings and, in the nature of things, the determination of the necessity for such use was left by said company to the judgment of Raid Greer. He exercised that judgment when he fired upon Blakely, He was aeting within the scope of his authority. He was authorized' to shoot if occasion required it, according to his judgment. His judgment was at fault. This cannot be charged to Blakely but must be charged to Greer and his employers. This principle is illustrated more’ or less fully in most of the authorities cited by counsel in this case. In the ease of Little Miami Ry. v. Wetmore, 19 Ohio St. 110 [2 Am. Rep. 373], it is held that a master is not responsible for the wrongful act of his servant unless that act be done in execution of the authority, expressed or implied, given by the master.

In that ease a baggage master of the railroad company being angered by abusive language of Wetmore, picked up a hatchet and struck him. It was held that such act was not authorized by the master. The hatchet was furnished for a wholly different purpose. The hatchet was not furnished to strike people with, nor' as a means of defense or protection. In the case at bar, however, the revolver was furnished to be used as Greer did use it, subject only to a condition dependent upon the judgment of Greer, namely, that the person shot at was an unlawful intruder and Greer’s mistake of judgment in this matter must be chargeable to his employers.

In the case of Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398 [45 N. E. Rep. 634], the same principle is laid down. See also the case of the Nelson Business Col. Co. v. Lloyd, 60 Ohio St. 448, [54 N. E. Rep. 471; 46 L. R. A. 314; 71 Am. St. Rep. 729], Judge Minshall in deciding the case uses the following language, page 454:

“Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of a servant, done in the course of his employment and within the scope of his authority.”

The same principle is laid down in the case of the Lima Ry. v. Little, 67 Ohio St. 91 [65 N. E. Rep. 861], a case which went up from this county. It is useless to multiply authorities. The sole question under the pleadings to be determined in this case is, was Greer at the time he fired the shot in the service of, and acting for, his master and within the scope of his authority? As indicated above, it is the judgment of this court that he was so acting. Under these circumstances we hold that the court erred in sustaining the demurrer to the amended petition and for this reason the judgment of the court of common pleas is reversed at the costs of the defendants in error. The demurrer is overruled, judgment for costs and execution awarded and cause remanded for execution and further proceedings.

Norris, J., concurs.  