
    MARTIN v. JONES.
    1. Master and Servant — Liability op Master por Acts op Servant — Gasoline Filling Station Operator — Shooting.
    In action by customer, shot by operator of a gasoline filling station, against the operator and corporate owner of the station for damages caused by the shooting, corporation was not liable where it was not one of operator’s duties to be armed, it does not appear operator shot to protect its property nor to further the company’s business, the only reason for shooting being either to injure plaintiff after an argument or to protect himself from plaintiff.
    2. Same — 'Wilpul and Malicious Act op Servant — Liability op Master.
    Where the servant does a wilful and malicious act while engaged in his master’s work, but outside of his authority, as where he steps aside from his employment to gratify some personal animosity or to accomplish some purpose of his own, the master is generally not liable as such an act is the personal tort of the servant.
    3. Appeal and Error — Master and Servant — Independent Contractor — Questions Reviewable.
    Where corporate defendant, owner of gasoline filling station, is determined to be not liable for damages sustained by plaintiff when shot by defendant operator even though latter was an employee, question as to whether the operator was an employee or an independent contractor is not considered.
    Appeal from Wayne; Merriam'(DeWitt H.), J.
    Submitted April 14, 1942.
    (Docket No. 40, Calendar No. 41,829.)
    Decided July 1, 1942.
    Case by Oscar Martin against Larry Jones and Standard Oil Company, an Indiana corporation, for damages for personal injuries sustained when shot by defendant Jones. Verdict for plaintiff. Judgment non obstante veredicto as to defendant Standard Oil Company. Judgment for plaintiff against defendant Jones. Plaintiff appeals.
    Affirmed.
    
      Bratton & Bratton, for plaintiff.
    
      Kerr, Lacey & Scroggie, for defendant Standard Oil Company.
   North, J.

Plaintiff drove into a Detroit Standard Oil Company station operated by defendant Jones for tbe purpose of buying some oil for bis car which was tben being driven by bis son Jack. An argument developed between Jones and plaintiff. Plaim tiff contends tbe controversy began because he objected to Jones putting bulk oil in plaintiff’s motor when be bad requested oil from a sealed can; that Jones tben began to curse bim. Jones says that plaintiff began tbe trouble by passing dirty remarks about Standard Oil Company stations and their service; that plaintiff began to call Jones names and that because of bis actions Jones thought plaintiff yias connected with a gasoline price war tben going on. Plaintiff paid Jones for tbe oil and bis son Jack drove bim out of tbe station. For some reason, plaintiff bad bis son stop tbe car and got out and walked back across tbe street to tbe station; plaintiff says be thought Jones bad forgotten be bad paid bim since Jones followed tbe car out to tbe street. Jones bad gone back to bis station at that time. The two continued to argue. Jones tben backed away 20 or 25 feet, without warning pulled out a gun and shot plaintiff in tbe abdomen, inflicting a painful and almost fatal wound.

Plaintiff brought this action to recover damages against Jones and tbe Standard Oil Company for. tbe attack, charging that Jones was tbe agent of the oil company “and that the happening herein related occurred during the due course of his employment and regular discharge of his duties.” Jones contended that he acted in self-defense since* ho thought plaintiff had a gun in his pocket. The Standard Oil Company put forth several defenses, chief of which were that Jones was an independent contractor since it had leased the station to him; and even if it were found Jones were its agent, the shooting was a deliberate act and did not arise out of' the course of his employment. The trial judge held the Standard Oil Company’s motion for directed verdict under advisement under the Empson act, 3 Comp. Laws 1929, § 14531 (Stat. Ann. § 27.1461), and allowed the case to go to the jury. The jury found against both defendants. Thereafter the trial judge ordered judgment non obstante veredicto as to the Standard Oil Company on the two grounds above noted. Plaintiff appealed from the judgment in favor of the Standard Oil Company. Defendant Jones did not appeal.

Was Jones acting within the scope of his authority, even if it were to be conceded he was a servant of the oil company when he shot plaintiff? It is argued by plaintiff that Jones did shoot within the scope of his duties as manager of the oil station. Plaintiff cites several cases to support his contention. However, none of these cases seem to be directly in point. Cook v. Railroad Co., 189 Mich. 456, involved a night watchman employed to guard his master’s property. The court held there that it was a question for the jury to decide whether the employee shot in order to protect his master’s property or if he shot in defense of himself. Here, it does not appear that Jones shot to protect the property of the Standard Oil Company though he did feel plaintiff might be connected with a gasoline price war then going on; nor did he shoot to further the oil company’s business in any way; nor was it one of his duties to be armed. The sale of oil was part of his duty, but Jones did not shoot in order to promote the sale of oil. Rather, the argument caused the shooting. The present case comes within the language of this court in Stone v. Sinclair Refining Co., 225 Mich. 344, where we quoted 26 Cyc. p. 1527: “On the other hand, where the servant does a wilful or malicious act while engaged in his master’s wort, but outside of his authority, as where he steps aside from his employment to gratify some personal animosity or to accomplish some purpose of his own, the master is generally not liable.” Here, Jones had no reason to shoot plaintiff outside of a personal desire either to injure plaintiff or else to protect himself from plaintiff. There was no basis on which the jury might find that Jones was furthering his master’s interests by shooting plaintiff. In all the cases cited by plaintiff, the servant might in some way have been held to be promoting his master’s business by his action, or else it was part of the servant’s duties to carry firearms. Anderson v. Schust Co., 262 Mich. 236, at 240, holds:

“The true rule is that for a positive wrong by a servant beyond the scope of the master’s business intentionally or recklessly done, the master cannot be held liable. Such acts may constitute personal torts of the servant, but the master is not responsible.”

Since this above holding would bar plaintiff’s recovery against defendant Standard Oil Company even if plaintiff proved Jones were its employee, we need not go into the question of whether or not Jones was an employee or an independent contractor.

The judgment entered in the trial court must be affirmed, with costs to defendant appellee.

■ Chandler, C. J., and Boyles, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., took no part in this decision.  