
    Charles Burns, Resp't, v. Glens Falls, Sandy Hill and Ft. Edward Street Railroad Company, App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Master and Servant—Tort.
    A master is responsible lor the acts oí his servant within the general scope of his employment, while engaged in the master’s business, and done with, a view to the furtherance of such business, whether the act is done negligently, wrongfully or even willfully.
    2. Same—Instruction.
    A request to charge, in an action for wrongfully ejecting plaintiff from a car, that, if the conduct of the conductor was willful, malicious and done for a purpose of his own, the defendant is not liable, is properly refused.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the judge’s minutes.
    G. M. Ingalsbe (Potter & Lillie, of counsel), for app’lt; W. E. Young, for resp’t.
   PARKER, P. J.

This case was sent to the jury upon the question of fact whether the conductor used unnecessary violence or inflicted unnecessary indignity upon the plaintiff while ejecting him from the car. On that question the jury have found for the plaintiff, and the defendant asks for a new trial, on the ground that such verdict was not sustained by the evidence, and also for alleged error in the charge of the court.

Although the conductor testified that the car stopped, and plaintiff was put off, at a point something over five hundred feet from where plaintiff’s witnesses Yarter and Young stood, yet they testified that it stopped in front of the Halfway House, where they were sitting; one of them says about thirty feet away. They claim not only to have seen the transaction, hut that the car stopped where they could see it; and on the question of fact the evidence on the part of the defendant is very far from being so conclusive that the verdict of the jury should he disturbed. Thompson v. Vrooman, 21 N. Y. Supp. 179; Sweeny v. Mayor, 43 St. Rep. 642; Baird v. Mayor, 96 N. Y. 567; Newman v. Wilson, 78 Hun, 295; 60 St. Rep. 243.

The claim of error in the charge is that the court did not properly instruct the jury as to what would be the effect upon the defendant’s liability if the conduct of the conductor was willful and! malicious, and done with a purpose of his own. The rule of law upon that subject seems to he settled substantially as follows:

“For acts of the servant within the general scope of his employment, while engaged in Ms master’s business, and done with! a view to the furtherance of that business and the master’s interest, the master will he responsible, whether the act be done negligently, wantonly, or even willfully. In general terms, if the servant misconducts himself in the course of his employment,, his acts are the acts of the master, who must answer for them. There are intimations in several cases of authority that for the-willful act'of the servant the master is not responsible. * * * But these intimations are subject to the material qualifications-that the acts designated ‘willful’ are not done in the course of the service, and were not such as the servant intended and believed to he for the interest of the master. In such case the master would not he excused from liability by reason of .the quality of the act. * * * If a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible; so that the inquiry is whether the wrongful act is in the course of the employment, or outside of it, and to accomplish a purpose" foreign to it.” Mott v. Ice Co., 73 N. Y. 543-547.

See, also, Ochsenbein v. Shapley, 85 N. Y. 215-220.

In Hoffman v. Railroad Co., 87 N. Y. 25-32, it is said:

“The defendant is responsible unless the brakeman used his . authority as a mere cover for accomplishing an independent and wrongful purpose of his own.”

See, also, Meehan v. Morewood, 52 Hun, 566; 23 St. Rep. 487.

Three requests to charge were made by defendant’s counsel, each one of which was a separate and distance proposition, and each one of which must stand or fall by itself. The first was that, if the conductor’s act was willful, the defendant was not liable; clearly, a proposition not sustained by the rule above quoted. The second request was that, if his conduct was malicious, the defendant was not liable; a proposition evidently not sustained by the above rule, for it is there said that, though the act be “wantonly or even willfully done,” the master is liable if it was-done in the course of his service, and intended to he for the master’s interest. The third request was that, if the acts were-done “with a purpose of his own,” the defendant was not liable. Manifestly, this proposition is not a correct one, for the purpose-of his own might have been to put the plaintiff off the ear, in the interest of defendant, and in obedience to his instructions. Such a purpose, clearly, would not exonerate the defendant. The test is not on the “quality of the act,” hut whether or not it is done outside of the servant’s employment, and to accomplish a purpose of his own foreign to such employment; and neither of the recraests includes that element in the proposition it presents. But the court charged the last proposition with some modification, and the defendant complains that in so doing he misstated the rule. The statement was substantially to the effect that, so far as the conductor was acting in the performance-of his duty as agent of the defendant, the defendant was liable for his acts; hut if the altercation was one between the conductor and the plaintiff, Avholly unconnected with the business of the defendant, the defendant would not be liable. Both of the propositions contained in that statement are correct; and, if counsel desired a more full explanation as to just what the conductor’s motives and purposes must be in order to exonerate the defendant, he should have made specific requests to charge, in which the correct rule was stated. Certainly, the requests which he did make were not correct, and the only exception he took to the charge was that it did not conform to those requests.

The other exceptions taken to the charge, and to the refusals to charge as requested, are not pressed by the defendant, and we do not discover any error in them. Our conclusion is that the judgment should be affirmed.

Judgment and order appealed from affirmed, with costs.

HERRICK, MERWIN, and PUTNAM, JJ., concur; LANDON, J, concurs in the result.  