
    The Little Miami Railroad Co. v. Henry S. Wetmore.
    1. A master is not responsible for the wrongful act of his servant, unless that act be done in execution of the authority, express or implied, given by the master. Beyond the scope of his employment, the servant is as much a stranger to his master‘as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master.
    2. Where the plaintiff after purchasing a ticket as a passenger, applied to the servant of the defendant charged with the duty of checking baggage, to have his baggage checked to his place of destination, and by his importunate conduct and abusive language towards the servant provoked a quarrel, in which the servant, to gratify Ms personal resentment, struck the plaintiff : Held — That the wrongful act of the servant in striking the plaintiff cannot be regarded as authorized by the master, nor as an act done in the execution of the service for which he was engaged by the master. And the fact that the blow was inflicted with a hatchet furnished by the master, to be used for a wholly different purpose in connection with the servant’s business, is immaterial as respects the liability of tbe master.
    3. A charge to the jury, though not strictly objectionable in point of law, but which leaves the jury to draw an incorrect inference from facts in the case material to the issue, constitutes good grounds for a new trial, where it is reasonable to suppose, from a consideration of the whole evidence, that a different verdict would have been rendered if the jury had been fully instructed. The charge ought not only to be correct, but to be so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as they may find them from the evidence.
    Error to the court of common pleas of Hamilton county. Reserved in the district court.
    Henry S. Wetmore, the plaintiff below, filed his petition in the court of common pleas, from which it appears that the plaintiff, on the 4th day of August, 1864, at Cincinnati, purchased of and paid the defendant for three tickets, to wit: one for himself, one for his wife, and another for a third person in his company, to travel on a passenger train of cars of the defendant from Cincinnati to Columbus; that the plaintiff, having delivered his baggage at the proper place to be checked, requested John Halpine, the agent of the defendant appointed to perform this duty, to check the same, and deliver the checks to the plaintiff, hut that this agent, while engaged in the business of the defendant in checking baggage, and in acting in tbe course of the business of bis agency, and while the plaintiff was procuring his checks for his baggage, assaulted and beat the plaintiff with a hatchet. The petition sets forth the injuries caused thereby to the plaintiff, and asks to recover his damages, which are stated at ten thousand dollars.
    The matters alleged in the petition were put in issue by the defendant.
    After verdict for the plaintiff, and the overruling of the defendant’s motion for a new trial, a bill of exceptions was taken, embodying all the evidence, and showing the action of the court in charging the jury, and in refusing to charge as asked by the defendant.
    
      The following extracts from the, bill of exceptions contain the substance of all the evidence having a material bearing upon the question of the liability of the defendant below for the act complained of.
    The plaintiff testified: “ On the night of the 4th of August, 1864,1 procured tickets for self, wife, and Mr. Clinton. My wife was.going east via N. Y. & E. R. R., and Mr. Clinton and myself were to accompany her as far as Columbus. We arrived early at the depot — the first carriage; I think I paid some employe of the road to put my trunks on the platform. I asked Ilalpine if he would please check my baggage ; he made some remark, the purport of which was, he would let me know when he would check my baggage. Then I walked around the depot, and came back and said : I wish you would check my baggage, as my wife and child are waiting for me in the sleeping car.’ I saw baggage being checked and put upon my trunks, and I went around the tables and said : I wish you would check my trunks by the New York and Erie Railroad;’ there were two trunks and' a bonnet-box. He caught hold of me, and shoved me up against some trunks, and said, D — n you, I told you once I would check your baggage when I got ready.’ He caught me by the right collar, and shoved' me against my left side. I had some cigars in my breast-pocket, -which were broken, and it took my breath away for a moment; other baggage, which had arrived after mine, was being checked; baggage was arriving at the time, and some was checked before and some after mine. My trunks were on top of the platform. After he shoved' me against the trunks or counter, I went outside the tables, and shook my finger in his face, and said, ‘ You d — n scoundrel, you shall suffer for this; what do you mean by annoying me in this manner; why don’t you check my baggage ? ’ He then seized the hatchet and struck me over the head, saying, God' d — n you, I’ll kill you.’ I didn’t see him take the hatchet. After striking me he went right on checking baggage.”
    J. O. Clinton testified: I live in Cincinnati; have lived here some years; went down with Wetmore from the Spencer House in the carriage with his wife and child. The Captain had got tickets at the corner of Front and Broadway, for Columbus, via Little Miami Railroad. His wife was going on east. Captain gave me sleeping-car tickets, and told me to take berths while he got the baggage checked. I went to the sleeping car, and he went to the end of the depot where they checked baggage. I saw his wife and child seated in the berth and remained with them some time. We left the Spencer House at 9.30. Train left at 10.30. It took us, I should think, about 15 minutes to drive down. I went out to see why the Captain didn’t come. Found him at the platform where they checked baggage. Wetmore said, ‘Will you please check my baggage; ’ said this to Halpine; ‘ My wife and child are waiting for me; ’ Halpine did not answer at all. Wetmore was oh the outside of the platform, and Halpine on the inside, where he usually checks the baggage. Wetmore’s baggage was on the platform. This was when I first came out and went out to where Wetmore was standing. We waited some time, perhaps fifteen minutes, but previous to this some other baggage had come on the bus, after our baggage had come. It was all checked while I was standing there. It was placed on the platform, and covered Wetmore’s trunks. This baggage arrived after Wetmore’s. Wetmore waited some time and became very indignant, and walked around the other side of the platform, and said, ‘ Are you doing this to annoy me; why don’t you check my trunks \ ’ When he said this he was inside the platform, about three feet from it. Halpine answered, giving him a push, ‘ God' d — n you, I told you I would check your baggage when I got ready ; get out of here,’ or some such remark, and shoved him against a trunk. Wetmore put his hand to his breast; he had some cigars in his pocket, which were broken. It seemed to knock the breath out of him for a moment. Wet-more went outside of the platform, and stepped up opposite to where Halpine was standing, raised lfis finger, and said, ‘ You d — d scoundrel, you shall suffer for annoying- me in tMs manner.’ Halpine then seized a hatchet and struck Mm on the head with the edge, and said, ‘ You d — n son of a b — h, I’ll kill yon.’ Wetmore fell back; would have fallen, but I supported him. . . . When Halpine struck Wetmore he (Halpine) was checking the baggage, behind the platform for the railroad company — the usual place. It was while Halpine was engaged in checking baggage for the Little Miami Railroad Company, and while Wetmore was trying to secure checks for his baggage, that Halpine struck the Captain. Wetmore was on the other side of the platform, and Halpine leaned over the platform and struck him. He took the hatchet from a shelf or somewhere behind the counter. After striking Wetmore, Halpine proceeded as usual, checking baggage.”
    On behalf of the defendant the following witnesses testified as follows:
    John Halpine: “ In August, 1864, I was baggage-master or check-agent at Little Miami R. R. Depot. My duties were to put the checks on the trunks —- checking was my business. Brelsford was general baggage-master. On the night of 4th August, I left the baggage room about 20 minutes before 10 ■o’clock. As I came up to the tables, Capt. Wetmore was inside the tables. These are movable tables, on which the ’baggage is placed, and when trains are not coming in or going out, they are set up against the wall. When we check baggage, they are drawn out and placed end to end — two on -the east side and two on the west 'side of one of the depot -doors. The tables run from the wall to within a foot or so -of the cars, so that a person can pass between the end and the cars. As I came up and passed around the end, inside -.the tables, Wetmore was having some words with Brelsford. 'The first I heard was Wetmore saying to Brelsford, Cod ■d — m you, I’ll have you put out of this depot before morning.’ Brelsford told him that he would have to go out- . side the tables, and that he did hot check baggage, and when he saw me he said, There is the check man; now step outside :and get your baggage checked.’ I passed into the check-box •.and got some Saratoga checks, as there was a party of ladies ■there who had been in the waiting-room all the afternoon, sand who were going to Saratoga,:and I -commenced checking their trunks for them. Wetmore stepped up and said, I want my baggage checked, sir.’ I told him to pass outside, show his tickets, and he would get his baggage checked. We compel passengers to show their tickets in order to avoid mistakes. There are different routes to New York and other places, and we have to know what route a passenger is going in order to send his baggage the same way. I kept on checking, and Wetmore came up on the inside of the table again, and said, catching me by the shoulder, You God d — d ■pup, I want you to check my baggage.’ I took him by the arm and led him to the end of the table and told him he would have to keep on the outside; that he would get his baggage checked by having it put upon the tables, and showing his tickets. He came in the inside again, and I told him he would have to keep outside. He then went out of his own accord. Nobody laid hands on him. He passed around outside the tables and came up opposite the place where I was checking, and struck across the table at me with his fist, and said, You God d- — d son of a b — h.’ I threw my head back so that he did not hit me. I kept on checking, moving towards the street. There were ladies and gentlemen standing there, and he passed through them towards me and said, You God d — n son of a b — h, I’ll fix you now,’ and got his hand behind his coat this way (witness indicates the movement). Tstooped and caught the hatchet, and shoved it at him so — (witness indicates the motion), and it struck him as he approached the table. The eye through which the handle passes hit him. . . . The hatchet was standing with the handle up, and is used for fastening on straps to trunks or boxes, and fastening on checks. This was an ordiary hatchet, which we had there to nail straps on to trunks. I was at the time in my ordinary business of checking — was in my usual place.”
    Henry Bonte: I was in the employ of the Little Miami Railroad Company when this difficulty occurred, as a porter to handle baggage — that is, to take trunks off the buses’ and wagons, and bring them into the depot and put them on the tables. Wetmore first asked me to check his baggage; I told1 him he’d have to wait till the check man came.' He then went to Brelsford inside the tables, and asked him to check his baggage. Brelsford told him he didn’t -check baggage, and he’d have to wait till the check man came. Then we moved the tables out. Wetmo’re’s trunks were on the table, and we put them down on the floor when we moved the tables out. He asked me if I would check his baggage, and offered me fifty cents if I would get his baggage checked. He had some money in his hand. Then Halpine came up, and Brelsford pointed him out as the checker, and Wetmore went to him and told him he wanted to have his baggage checked. Halpine told him to go outside the tables, as no one was allowed inside. Then Wetmore went outside, and Halpine opened his check-box. There were some ladies there who wanted their baggage checked, and they showed their tickets, and Halpine commenced checking for them. Wet-more came inside again and caught Halpine by the shoulder, and said,£ I want you to check my baggage.’ Halpine told him to go outside, and took him by the arm and put him outside. He didn’t go clear outside, but came back again and said,£ D — n you, you won’t be here any longer if you don’t ' check my baggage.’ Halpine told him to go outside, show his tickets, and he would get his baggage checked. He then went outside and came around the table, opposite to where Halpine was, and struck him with his fist across the table, and said,£ You God d — n son of a b — h, if you don’t check my baggage; ’ he then went back a little in the crowd, and then came rushing on again, and Halpine struck him with the hatchet. I couldn’t see it hardly, it was too quick done; then Wetmore went away. ... I was standing outside the tables, within two or three feet of Wetmore when he'was struck, and was on the left side of him, and Dick Sohl was on the other side of him. . . . Wetmore was trying all the time to get his baggage checked. When Wetmore went to Halpine and took hold of him, the words he used were, £ I want you to check my baggage ; ’ he spoke to me politely enough. When Wetmore came up I didn’t see Halpine strike him. Halpine said to me, ‘I struck him with a hatchet; ’ I was standing two or three feet from Wetmore.”
    Dick Sohl: “I am employed at Little Miami Depot, as porter, to handle baggage, and was so employed in August, 1864:. There were four of ils — two outside and two inside the tables. Bonte and I were outside the tables. I saw Wetmore talking with Brelsford, and said to him,£ I want my baggage checked; ’ Brelsford said he did not check baggage, and he must wait till the check man came. Then Halpine came up from the baggage room aud went inside the tables. Wetmore stepped up to him and said,£ I want my baggage checked,’ or something like that. Halpine said to him,£ If you want your baggage checked you must step outside and show your tickets.’ Wetmore went to the end of the tables, and stepped outside; I believe I saw Wetmore inside again, but didn’t hear what he said, for just then the omnibus came. Afterward Wetmore came irp behind me, where I was standing at. the tables, and came close to me. Then he said to Halpine, £ You d — -d son-of-a-b — h,’ and tried to strike him this way — (here the witness made a motion, as of a blow). Halpine drew back so that the blow did not reach him. Then I saw Wetmore, and he put his hand behind him so — (indicating the motion). Wetmore was then at my left side, and when he put his hand behind him in that way, I watched him, intending,'if he pulled out a knife or a pistol, to catch it, so that he should not hurt any one with it. He looked like a man that was very mad. . . . Wetmore came up and struck at Halpine across the counter. Did not hit Halpine. Went back into the crowd, and came up and struck at Hal-pine again; liad his arm raised this way — (shows position of the arm raised to strike); then Halpine struck him. Did not see Ilaipine strike Wetmore. Had just turned away to go after baggage. When Wetmore came up this second time, at the time Halpine hit him with the hatchet, Wetmore had his arm raised so —; right arm. I was standing on the left side, within six inches of Wetmore.”
    Henry Ulm : ££ I was working inside the baggage tables ; I was putting baggage inside the baggage car of the night express, which went ont at that time at half-past ten o’clock in the evening. Halpine was checking the baggage. It was about nine o’clock in the evening; more than one hour before the train was to leave. Captain Wetmore came to me before Halpine came, and asked me where the checker was ? I told him he was not there, and he would have to wait a few minutes; just as I told him he would have to wait, Mr. Brelsford came up from the baggage room. Then the Captain went up to Mr. Brelsford and told him to check his baggage. Then Brelsford told him to go outside the tables; that he was not checking yet, and he would have to wait a few minutes; that it was against the rules for anybody to come inside the tables except the officers of the road. When Brelsford told him this, he went outside the tables, then he turned round and came right back again. He told Mr. Brelsford again to check his baggage; Mr. Brelsford told him he would have to wait a few minutes, for the checker was not there; that he must go outside the table and stay outside. Then Wetmore went outside and jnst then Halpine came and commenced checking. Then, as Halpine commenced checking, he came right back inside the tables and told him to check his baggage. Then Johnny Halpine told him he had to go outside the tables, and he would check his baggage just as soon as he could get to it. Wetmore said he would not go outside the tables. Then Halpine told him two or three times to go outside the tables; and he said he would not do it — that he would not go out for anybody. Then Johnny Halpine took hold of him by the arm and told him to go outside of the tables. Wetmore then went outside and said to Johnny Hal-pine, c God d — n you, you won’t be inside this depot long.’ After this I did not notice Wetmore particularly any more.” On being asked how it came that he did not see or hear what finally passed between them, the. witness said, “I just had the baggage in my arms and turned round and went to the baggage car. I did not see anything of it then.”
    Herman Schore : “ The difficulty occurred just before the - night express went out. Capt. Wetmore came inside of the tables, and told Brelsford he wanted his baggage checked, Brelsford told him to go outside the tables. It was against tbe rules to allow anybody inside tbe tables. He repeated to Mr. Brelsford that be wanted bis baggage checked, and then Brelsford told bim again to go outside if be wanted bis baggage checked. Then Wetmore said be would not go outside. Then be asked Halpine to check bis baggage, and Halpine told bim to go outside. Halpine told bim to go, and be would not go. Halpine then took bim by the arm and told bim to go out. Then he went outside tbe tables. Wetmore then called Halpine a £ God d — n son of a b — h, I want my baggage checked.’ I went and put trunks in baggage car. I did not see Capt. Wetmore strike bim.”
    Tbe witness further stated, that, after so long a time, be could not say certainly whether the expression used by Wet-more was that imputed to bim above, or ££ G — d d — n you, you won’t be inside of this depot long.”
    In rebutting, tbe plaintiff testified :
    ££ I just spoke to Brelsford, and be told me to go to Hal-pine, and I went to bim, and bad tbe ticket in my band, and said,£ Will you please check my baggage by tbe Erie road ? ’ showing bim my ticket. I bad no weapon on me. I may have put my band in my pocket; I often do so when I am waiting for anything. I don’t recollect putting my band behind me, though I might have done it. I never owned a pistol till after this occurrence.”
    Clinton, recalled by plaintiff, testified: ££ When I went to see why tbe Captain stayed so long, I saw him at tbe tables with tbe tickets; coupon tickets ; can’t tell tbe color. I saw tbe ticket in Wetmore’s band, when, be first requested Hal-pine to check bis baggage, and also tbe second time, when Halpine shoved bim against tbe trunks. He came outside, and I was standing near tbe cars. I was about twelve feet behind bim, and he said,£ You d — d scoundrel, you shall suffer for this; why do you annoy me in this manner ? ’ I sup* ported bim when be was struck.”
    Whereupon counsel for defendant asked the court to charge tbe jury as follows:
    1. Plaintiff cannot recover unless tbe acts done by Halpine were within the scope of his employment by the railroad company.
    "Which was given.
    2. Such acts to be within the scope of his employment must be such as he would be naturally called upon to do while discharging his duties.
    Which was refused.
    
      5. It is not sufficient that these acts were done during the time of his employment' by the railroad company, or at the place where his duties called him to be; there must be something more.
    Which was given.
    
      4. The fact that Halpine was employed to check baggage, of itself, is no evidence that he was authorized or employed to do the acts complained of.
    Which was given.
    . 5. The fact that Halpine was employed to check baggage, of itself, is not evidence that would make defendant liable for the acts complained of.
    Which was given.
    6. This defendant is only liable for the acts of its agents, when such acts are within the scope of their employment.
    Which was given.
    
      1. If the jury find that Halpine assaulted and beat the plaintiff, they must find that such assault was an act which he was employed by defendant to commit, or that it was within the proper sphere of the duties he was called upon to perform.
    Which was refused, in this form, and the general instruc- ■ tions given instead.
    8. The mere fact that Halpine committed the assault, and the further fact that he was at that time in the service of defendant, as baggage-master, is not sufficient to make defendant liable.
    Which was given.
    9. The mere fact that a man is employed by defendant as a baggage-master, does not make defendant responsible for anything and everything he may do while in its service; defendant is only liable for such acts as are purely and legitimately within the sphere of his duties as baggage-master.
    "Which was given.
    10. There is no evidence to show that said assault was within the scope of the employment of said Halpine.
    Which was refused.
    Whereupon the court charged the jury as follows:
    “ Having disposed of these preliminary matters, you come to the alleged assault. Here you will examine the testimony very carefully; for a railroad company is not liable for every act of its employes. It is liable for their wrongful acts only when they are doné by the employes in the course of their employment. When a conductor seizes a man and puts him off a train, he commits an assault. If he does this in exercising his control over a train under his charge, lie commits an assault in the course of his employment. If the man is wrongfully put off, the railroad company is liable. . Hence, in this case, the defendant is not liable unless the assault complained of was committed by Halpine in the course of his employment. Now, when a train is about to start, and a number of pieces of baggage are waiting to be checked, and the owners are pressing for priority, the baggage-master, or whatever may be the proper designation of the employe who has charge and superintendence of checking baggage, taking one trunk at a time, necessarily selects in turn the pieces which he cheeks.- In doing this he is acting in the course of his business.
    “ The plaintiff has offered testimony for the purpose of showing that, at the time of the alleged assault, there was an accumulation of baggage in defendant’s passenger depot; that a train was about to start; that Halpine was employed by the defendant to take charge of and superintend the checking of the baggage; that he was in his place, his regular employment, and was selecting and checking other baggage lately arrived, in preference to the plaintiff’s, when he committed the assault; and that he gave the blow with an instrument put into his hands by the defendant, to be used by Mm in the employment in which he was then engaged.
    
      “Notwithstanding this, even if you find all these to be proved, still, if you find that the employe struck the plaintiff as a personal act, on his own account, not in the way of carrying on his business, you will find for the defendant.
    “ On the other hand, if you find these proved, and if you find that he struck the plaintiff by way of facilitating his business, carrying out his own selection and order of checking baggage, and enforcing his authority, and with an implement given him by the defendant for the purpose of carrying on his employment, and you further find he did it without fault on the part of the plaintiff, you will be authorized to find for the plaintiff.
    “If you find for the plaintiff, you will assess damages. Assessing damages against the employer, as in this case, you will not give exemplary or vindictive damages, but will give compensation for the injury inflicted. This will include expense, necessarily occasioned, physicians’ fees, nurse hire, necessary increase of expense of boarding by detention from his intended destination, compensation for pain suffered, or for any permanent injury to health.
    “ In fine, if the plaintiff has failed to make out any of the facts necessary to .sustain his case, or if the assault was not in the course and by way of his employment, you will find for the defendant. If the plaintiff has proved the facts averred in his petition, and has proved that the defendant’s employe struck the plaintiff by way of carrying on his employment, as I have said before, then you will find for the plaintiff, and give compensation for injury which he has suffered necessarily flowing from the blow.”
    The jury, after retiring to consider their verdict, returned into the court-room, and, in presence of the parties and their attorneys, asked the court if it would be sufficient to make the defendant liable if they should find that Halpine was in the employment of the defendant at the time of the assault. Whereupon the court replied: “ It would not be sufficient; a man, while in the employ of the defendant, may do many acts for which the defendant cannot be held liable. He may be engaged in his own business, or even be out of the county or State, though still in the hire of the defendant. To make the defendant liable you must find that Halpine was at the time acting in his employment.”
    The j ury further asked: “ Would it be sufficient to hold the defendant, if we find that Halpine was acting in his employment immediately before and after, a minute or two before and after, though he was not acting in his employment at that very minute ? ” To which the court replied: “ It would not be sufficient; the defendant is not liable unless Halpine was acting in his employment at the time.” .
    To the refusal to give the 2d, tth, and 10th charges, and to the charge as given, the defendant excepted.
    Whereupon the jury returned a verdict for the plaintiff for Seven thousand dollars.
    Defendant moved the court for a new trial because:
    1. Of excessive damages, appearing to have been given under the influence of passion and prejudice.
    2. The verdict is not sustained by sufficient evidence.
    3. The verdict is contrary to law.
    4. Of error of law occurring at the trial and excepted to at the time.
    Which motion the court overruled, and entered judgment On the verdict. To which ruling counsel for defendant excepted.
    To reverse the judgment thus rendered, the railroad company filed a petition in error in the district court, wherein the case was reserved for decision by this court.
    
      D. Them Wright for plaintiff in error:
    1. If this were a suit by Wetmore for damages against Halpine as an individual, it may be safely assumed that a verdict for the defendant would have followed, on the ground that there was sufficient reason for Halpine to apprehend grievous bodily harm, and that he struck in self-defence; but the strong point in this regard is, that Halpine, the man who did the injury, is not the defendant.
    2. When is the master liable for the wilful act or trespass of his servant; or when can a corporation be made liable for such an act? See Smith's Master and Servant (2d ed.), pp. 135 (side page 158), 183; Story on Agency, sec. 452; Croft v. Alison, 4. B. & A. 590; McManus v. Crickett, 1 East, 67.
    Can it be for a moment doubted in this' case, but that Hal-pine struck Wetmore to effect some purpose of his own. His testimony, and that of Sohl, the witness who stood near, is, that, from what Wetmore said and did, they supposed he was about to draw a knife or pistol, and hence the blow was given.
    It does not matter, in this connection, whether that supposition of Halpine’s was well founded or not; this testimony shows that the blow was given by Halpine in self-defence, or “ some (other) purpose of his own.”
    If Halpine was employed by defendant to check baggage, and proceeds to beat people about the head, he is certainly quitting sight of the object for which he is employed, and no longer has in view his master’s orders, but is pursuing that which his own malice suggests, and is no longer acting in pursuance of the authority given him.
    The petition should state, and the evidence should show, that the act complained of was in some way within the scope of the agency; which is not done, and cannot be done.
    The wilful act of the servant cannot and ought not to make his master liable, unless done in the course of seiwice. Of course there are wilful acts for which the master is responsible, because done in the course of the employment. A conductor puts a man off of a train; the act.is wilful, but it is in the course of the conductor’s employment, for that he is hired to do; but for a wilful act entirely foreign to the business, the master cannot be held liable, without breaking down all the rules of law that relate to this subject.
    The liability arises from the fact that the servant is doing the master’s business, and, in so far, is the master himself; but when not doing his master’s business, no relation between them exists any longer. Smith on Master and Servant, p. 136 (side page 160); Cox, Brainard & Co. v. Keahey, 36 Ala. 340, 344; Lyons v. Martin, 8 A. & E. 512.
    
      Agencies can only be instituted to do lawful things; and if they are limited to this sphere, how can it be exceeded ?
    It is no answer to this to say that railroad employes can beat anybody, and there is no remedy to the aggrieved party; there is precisely the same remedy as in any other case. Mr. Iialpine can be sent to one of the public institutions of Columbus, for a term of years, or his natural life; or he can be sued in a civil action for damages; and the fact that he is not pecuniarily responsible, but the railroad is, ought not to change the established rules of law.
    The case of the Steamboat Ohio v. Stunt, 10 Ohio St. 582, in effect, holds that the master is not responsible for an assault by his servant, with which assault the master was in no wise connected. See also Steamboat Messenger v. Pressler, 13 Ohio St. 255; Steamboat Ocean v. Marshall, 11 Ohio St. 379.
    The distinction to which Judge Gholson refers in the case last cited, as being disregarded, and for which the cause was reversed, is the distinction which was disregarded in the case at bar. The act of striking Wetmore was not an act which Halpine in his. business of checking baggage was called upon to do; it was not an act which forwarded the business of his employer; his agency and its whole scope was to do lawful things, and when he commits this unlawful act, he goes outside of his business; he is not doing a lawful thing negligently, or even wilfully so; he is doing an illegal act.
    Reference is also made to Ellis v. Turner, 8 D. & E. 533; Foster v. Essex Bank, 17 Mass. 308, 309.
    In Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326, it is said that the liability of the principal depends rtpon the facts — (1) That the act was done in the exercise; and (2) Within the limits of the powers delegated. If this be the law, what powers were delegated to Halpine, authorizing him to hit another over the head ?
    See also Crocker v. New London, Wilmington, and Palmer R. R. Co., 24 Conn. 249, 265; Salk. 282; 20 Conn. 284; Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn. 40, 53.
    
      We do not claim in this case that a master may not ba liable for the wilful act of his servant, for every act done with volition is wilful, in the sense that it was intended to be done; but the point is, it must be such an act as the agency called upon the servant to do: if it is not, how can he be acting as agent when he does it ?
    As far as the evidence before us goes, it only appears that Halpine was employed to cheek baggage, and that alone; all that was necessary to do, in the checking of baggage, he was authorized to do; could he give a promissory note and bind the company? That would have been outside of his business.
    If it be shown that hitting folks with a hatchet is the usual, ordinary, or customary mode of checking baggage; or that it is in any way useful in that employment; that it is necessary to do so before one can get the trunks on board of the train; or that it facilitates the business, and enables the business of checking to be carried on more expeditiously, or with greater satisfaction to the parties — railroad employers may be liable for acts similar to that of Halpine.
    But if none of these things are in the ordinary routine of business; if there is nothing in the vocation of baggage master that calls for hatchets and force and arms; if the assault is in no way the natural or necessary consequence of handling the baggage — then it is not an act contemplated by the master, and not within the scope of the employment.
    
      Vanderbilt v. Richmond Turnpike Co., 2 Conn. 479, 482; Wright v. Wilcox, 19 Wend. 343, 345, 347; Roe v. The Birkenhead, Lancashire and Cheshire Junction Railway Co., 7 E. L. and Eq. 546; 6 Jurist, pt. 2, N. S. 143, 1860; Goff v. The Great Northern Railway Co., 3 Ellis & E. 671; Eastern Counties Railway Co. v. Brown, 6 Exch. 314, 324; Poulton v. The London and Northwestern Railway Co., 2 Law Rep. Q. B. 534; Seymour v. Greenwood, 7 H. & N. 358; Mitchell v. Crassweller, 13 C. B. (4 J. Scott), 237, 247; Story v. Ashton, 4 Law Rep. Q. B. 476, 479; Williams v. Jones, XI Jur., N. S. 843; 3 H. & C. 254, 602; Evansville and Crawfordsville R. R. Co. v. Baum, 21 Ind. 70, 75; Howe v. Newmarch, 12 Allen, 49, 55.
    The court below should have given the 2d, 7th, and 10th charges asked.
    If an authority to check baggage is also an authority to hit a man with a hatchet, then defendant is liable.
    
      H. L. Burnett and John F. Follett for defendant in error:
    A corporation is liable for the tortious acts of its agents and servants in the discharge of the business of their employment, although such acts are wilful, and without the express consent and authority of the corporation. Penn. R. R. Co. v. Vandiver, 42 Penn. St. 365, 371; 5 Barb. 79; 6 Barb. 231; 16 East. 6; 5 Ind. 252; 3 Barb. 42; 2 Hill, 629; 4 Serg. & R. 16; 1 Florida, 136; 2 Harr. 514; 4 Man. & G. 452; Ell. Bl. & Ell. 115; 21 How. U. S. 202; State v. Verm. Central R. R. Co., 27 Vt. 107; Story on Agency (5th ed.), sec. 452, p. 536, and note 3, p. 538; Philadelphia and Reading R. R. Co. v. Derby, 14 How. 468; 8 Ohio St. 165; Redf. on Railways (4th ed.), sec. 130, pp. 508, 513; 7 N. H. 219, 227; 1 Wm. Rob. 391; Howe v. Newmarch, 12 Allen, 49; Weed et ux v. Panama R. R. Co., 5 Duer, 193; 17 N. Y. 362; Moore v. Fitchburg R. R. Co. et al., 4 Gray, 465; Hewett v. Swift et al., 3 Allen, 420; Meyer v. Second Av. R. R. Co., 8 Bosw. N. Y. 305; Seymour v. Greenwood, 7 Hurlst. & N. 355; Kora v. Ottawa, 32 Ill. 121; Chicago, &c., R. R. Co. v. McCarthy, 20 Ill. 385; 4 Law Times, N. S. 835: Smith on Master and Servant, p. 152; Duggins v. Watson, 15 Ark. 118; 14 How. (U. S.) 168; South-East Railway v. Europ. and Am. Telegraph Co., 9 Exch. 363; Goff v. Great Northern Railway Co., 3 L. J. 2 B. 148.
    Gradually the courts have been tending toward the disposition to give such servants and agents a large and liberal discretion, and to hold the companies responsible for all their acts within the most extensive range of their employment until now these limits are almost indefinable; thus throwing upon the corporations the responsibility of selecting competent and proper agents, and holding the companies respon sible for the proper discharge of their duties.
    Surely, it can not be maintained that the servant of plaintiff in error in this case was not acting within the scope of his employment. He was baggage-master, and as such was engaged checking the baggage of passengers at the time of this assault. He was at the post assigned to him, and in pursuit of his usual avocation. The hatchet used on the occasion of the assault was a necessary implement to him in the conduct of the business of his employment, placed in his hands by his master so as better to carry out that business. The company gave to him the instrument, the opportunity, and the power, and left their use to his discretion alone. Of this discretion he availed himself in this case in the manner stated, by way of facilitating his business, and enforcing his authority upon the defendant, Wetmore. That the act was wanton and malicious, cannot be denied; but this, under the modern rulings, in nowise relieves from responsibility his master, the corporation.
    The jury, after careful consideration of the facts, found that Halpine was, at the time of this assault, acting within the scope of his employment. This was a question of fact for the jury. After it has once been passed upon by them, this court will not, we take it, now call in question or overrule their conclusions upon the facts.
    The attention of your Honors is called to the following cases: Joel v. Morison, 6 Carr. & P. 501; Sleath v. Wilson, 9 Carr. & P. 607; Powell v. Deveney, 3 Cush. 300; Whatman v. Pearson, 3 British C. L. Rep. Com. Pleas, 422.
    We maintain, .that in the general management of the business of railroads, as common carriers of passengers or freights, to every officer or agent of the company, when engaged in the performance of his duties, there is confided, both by law and the corporation, certain “police powers.” Such powers are essential to the regular certain performance of his or their duties. Each agent, in the dispatch of his business, to accomplish certain tasks within limited periods of time, may, and must, in certain emergencies, suppress, by force if necessary, any interference with, or obstruction of the quick and certain discharge of his duties. Were it otherwise, trains might be delayed, and the whole business of the carrier embarrassed and interrupted. See Law of Railways, by W. Marshall, Esq., of the Middle Temple, published in 1862, p. 113, citing Greenwood v. Seymour, 9 W. R. 519, in Error, 786.
    The servant is employed to check the baggage of passengers. For this purpose it is necessary: 1. That a suitable place should be assigned in the depot for receiving and handling the baggage. 2. That the baggage checker should have control over the baggage, and sufficient space adjoining, to carry on his employment without interruption, 3. That he should have power to remove obstructions of persons or things, which would prevent the proper discharge of his duty. 4. That he might lawfully use such degree of force as was necessary to keep the space assigned him clear, or to remove all obstructions and illegal interruptions; and such acts as were necessary for that purpose were clearly within the scope of his employment. 5. That if, in attempting to exercise this last duty, “ he strikes, hut injudiciously, and in oi’der to extricate himself from a difficulty, or to enforce his authority in the premises, that will be negligent and careless conduct, or wilful conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment,” or in the general conduct of the business of his employment. 4 Barn. & Ald. 590. So where he uses more' force than is necessary, and an injury accrues. 4 Gray, 465; 3 Allen, 420; 12 Allen, 155, 156; Smith, Master and Servant, 157.
    Where the authority of a servant to bind his master upon, contract arises merely by implication, the general rule is,, that the “ authority of a servant is co-extensive with his usual employment, and the scope of his authority is to he measured hy the extent of his employment.” Smith, Master and Servant, secs. 125-127; Smith, Mercantile Law, 116; Paley’s Agency, 162.
    
      “ Where the master has entrusted his servant with the control of his carriage, it is no answer to say that the servant acted improperly in the management of it? Smith, Master and Servant, 159; 9 C. & P. 607.
    
      “ The disposition of the courts has been to give to agents and servants of railways a large and liberal discretion, and hold the companies liable for all their acts within the most extensive range of their charter powers.” Redfield on Railways, 380, and cases there cited.
    In the case at bar the ticket had been purchased — the contract for carriage had been completed. The defendant, Wetmore, was upon the premises of the company, his wife and child in the cars, and he seeking the checks for his baggage, preparatory to being transported to his desired destination. Fie had a right to demand of Halpine to check his baggage — that was contained in the contract when the ticket was bought. Story on Bailments, sec. 595; Angell on Carriers, sec. 571; 2 Kent, 601; Pardee v. Drew, 25 Wend. 459; 19 Wend. 234; 10 N. H. 481; Caswell v. Boston and Worcester R. R. Co., 98 Mass. 194; Warren v. Fitchburg R. R. Co., 8 Allen, 227.
    When Wetmore demanded his checks for his baggage, he ■(Wetmore) was a passenger; was in his proper place; was entitled to his checks. Halpine, the agent of the company, was in his proper place; was in the conduct of the business -of checking baggage for the company. Was it not violative of his duty to refuse to check Wetmore’s baggage as re-quested ? Proceeding in his business of checking baggage, in conducting — managing — the business of checking bag-gage, he violates his duty, and refuses to check Wetmore’s baggage. Both still being in their proper places, and Wet-more still importuning the agent (Halpine) to perform his •duty and deliver the checks, he (Halpine), violative of his ■duty in the premises, assaults Wetmore with an implp.mp.rif. or instrument placed in his hands by the company for the ■purpose of carrying on and conducting his business as baggage master. Could a clearer case ever be made of an assault occurring in the conduct of the business of the agent or -servant ? That the assault was wilful and brutal, does not, as we have seen by the decisions, relieve the company from responsibility.
   White, J.

There is no controversy as to the general rule by which the question of the liability of the railroad company for the act complained of in the petition, is to be determined. The difficulty arises in the application of the rule to the peculiar facts of the case. Halpine, the person guilty of the wrong, as the servant of the company, was charged with the duty of-checking the baggage of passengers; and whatever liability, if any, devolved upon the company for the consequences of his wrongful acts, grew out of the relation of master and servant which existed between him and the company.

The general» rule as to the liability of the master for the wrongful acts of his servant, is thus stated by Mr. Smith in his work on Master and Servant: “ A master is ordinarily liable to answer in a civil suit, for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in his master’s service. The maxims applicable to such cases being respondeat superior, and that before alluded to, qui faeitper alium faeit per se. This rule, with some few exceptions, which will hereafter be pointed out, is of universal application; whether the act of the servant be one of omission or commission, whether negligent, fraudulent, or deceitful, or even if it be an act of positive malfeas-. anee or misconduct, if it be done in the course of Ms employment, his master is responsible for it ewiliter to third persons.” Smith’s M. & S. s. p. 151.

But, to make the master responsible, the act of the servant must be done in the course of his employment, that is, under the express or implied authority of the master. Beyond the scope of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant-not done in the execution of the service for which he was engaged cannot be regarded as the act of the master. Id. s. p. 160; Shear. & Redf. on Neg., §§ 59, 62; Limpus v. London Genl. Omnibus Co., 1 Hurl. & Colt. 541; Poulton v. London & Southwestern R. R. Co., L. R. 2 Q. B. 535.

That there was in this ease no express authority given to the servant, is conceded. Can such authority be implied under the circumstances of the case from the nature of the business intrusted to his charge? The company contends that it cannot; and the tenth instruction was asked on the grounds that there was no evidence tending to show such authority. For the plaintiff below, it is insisted that the servant was impliedly invested with such powers as were essential to the regular and certain performance of his duties; that for the dispatch of his business, in certain emergencies, he must be considered as authorized to suppress by force, if necessary, any interference with, or obstruction of, the quick and certain discharge of his duties.

Without undertaking to lay down a general rule to govern all cases, it may safely be admitted that the servant is invested with authority to use the' neeessary means to the performance of the duties assigned him; and that the character of the ■means that may be used will vary according to the nature of the duty to be performed and the attending circumstances.

But, in looking at the evidence, it is to be noticed that the assault complained of was not committed in endeavoring to eject the plaintiff from the space enclosed by the tables, over which the servant may be supposed to have had a special control.: The plaintiff, according to his own statement, had gone outside of the tables, and was shaking his finger in Halpine’s face, and addressing him with an opprobrious epithet.

It seems to us the assault was in no way calculated to facilitate or promote the business for which the servant was employed by the .master; nor could it have been supposed to be, or intended, as, an act done with that view or object. It is not a case of excess of force and violence in executing the authority of the master, but rather an act beyond such authority and foreign to the objects of the employment. There was no evidence tending to show that Halpine had any charge of the portions of depot not allotted for the purpose of checking baggage; neither did his employment imply any authority or control over the persons of passengers or others who might be found there. Nor is this the case of an act done from a wrong judgment in regard to a matter committed by the master to the discretion of the servant.

Another ground assumed is, that the assault was an act of the servant done in part execution of the contract of carriage betweeu the plaintiff and the company.

This is merely presenting the question in a different form, the principle being the same as that already referred to, namely: whether the act was done in the execution or performance of the service for which the servant was engaged. Whether the service to be rendered by the master is in the performance of a contract, or in the discharge of any other duty resting on him, can, it is conceived, make no difference the question being, in either case, whether the act is' within the scope .of the servant’s express or implied authority in respect to the master’s service.

In order to withdraw this case from the operation of the general rule, and hold the company responsible on the ground of its contract with the plaintiff as a passenger, it is necessary to maintain that the company, in requiring the plaintiff to apply to its servant for the purpose and as the only means of getting his baggage checked, impliedly undertook to vouch for and warrant the good conduct of the servant towards the plaintiff while the two were engaged in transacting the business. Whether this position is tenable, we do not find it necessary in the decision of the case now before us to express a definitive opinion. The case was not tried on this theory in the court below, nor has this phase of the question been argued here.

Rut if any such rule of liability could be applied against the company, it would necessarily impose the reciprocal duty upon the plaintiff to so demean himself towards the servant as not, by misbehavior, to provoke a personal quarrel between them.

The evidence of the company on the trial tended strongly to prove that the plaintiff, by his importunate conduct and abusive language towards the servant, provoked a personal quarrel between them; that the assault was the result of this quarrel, and that the blow was inflicted by the servant as an act of personal resentment. If these facts had been found by the jury, the wrongful act of the servant in striking the plaintiff could not be regarded as authorized by the master, nor as an act done by the servant in the execution of the service for which he was engaged by the master. The fact that the blow was inflicted with a hatchet furnished by the master to be used for a wholly different purpose, though in connection with the servant’s business, was wholly immaterial as respects the liability of the master. If he would not otherwise have been liable for the assault, the fact that it was committed with his hatchet did not contribute to make him so.

The existence of the quarrel and its bearing upon the character of the assault was not noticed in the charge. And if the jury found the quarrel to have been of the character which we have stated the evidence tended to show it, they were not advised as to the influence it might properly have in enabling them to determine whether the assault was an act done in the course of the servant’s employment, or was merely his own personal act.

It is true, the charge stated the general rule correctly. But the difficulty encountered by the jury, as shown by the nature of the case and by the questions they propounded to the court, was to ascertain how to apply the general rule to the peculiar facts of the case in making up their verdict.

The reference made in the charge to the use for which the hatchet was provided, was calculated, we think, to make an erroneous impression on the jury on the very point on which their verdict hinged. And, furthermore, the charge, from the generality of its terms, failed to give the jury the assistance they ought to have received in view of the facts of the case.

A charge though not strictly objectionable in point of law, but which leaves the jury to draw an incorrect inference from facts in the case material to the issue, will constitute good ground for a new trial, where it is reasonable to suppose, from a consideration of the whole evidence, that a different verdict would have been rendered if the jury had been fully instructed. The charge ought not only to be correct, but to be so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury, in the application of the law to the facts as they may find them from the evidence. Grah. & Water. on New Trials, 774; 18 Maine Rep. 436; 30 Conn. Rep. 343.

Judgment reversed, and cause remanded for a new trial.

Brinkerhoff, C.J., and Scott, Welch, and Day, JJ., concurred.  