
    Charles Burns, Respondent, v. The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, Appellant.
    
      Torts — liability, of the master for excessive force used by a conductor in removing, a passenger from a car — not for an independent tort of the servant outside of his employment.
    
    The master is responsible for the ac.ts of his servant clone, within the general scope of his employment, while engaged in his master’s .business and having in view the furtherance of that business and the interest Of the master, whether the act is done negligently, wantonly Or even willfully.
    If the servant goes outside of his employment- and, without regard to his service, maliciously, or in order to effect a purpose of his own, wantonly commits, a trespass or .causes damage to another, the master is not responsible. .
    In an action brought to recover' damages resulting from alleged unnecessary violence and indignity inflicted upon the plaintiff in ejecting, him from a car, the court charged, the jury that so far as the conductor was acting in the performance of his duty, as an agent of the defendant, the defendant was liable for his a.cts, hut -that if -the altercation was one between the conductor and the plain;tiff, wholly'-unconnected with the business :of.-the defendant, "the- defendant would not toe liable.
    
      Held, that the charge was correct.
    Appeal by the defendant, The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 21st day .of May, 1895, upon the verdict of a jury rendered after a trial at the Washington Circuit, .and also from an order .entered in said clerk’s office, on the 16th day Of May, 1895, denying the defendant’s motion for a new tidal niade upon the minutes.
    
      
      G. M. Ingalsbe and Potter & Lillie, for the appellant.
    
      W. E. Young, for the respondent.
   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 ear. 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 500 feet from where plaintiff’s witnesses Yarter and Young stood, yet they testify 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, but 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 be disturbed. (Thompson v. Vrooman, 21 N. Y. Supp. 179; Sweeny v. Mayor, 17 id. 797; Baird v. Mayor, 96 N. Y. 567; Newman v. Wilson, 78 Hun, 295).

The claim of error in the charge is, that the court did not properly instruct the jury as to what the effect would be 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 be settled substantially as follows : “ For the acts of the servant within the general scope of his employment while engaged in his master’s business and done with a view to the furtherance of that business and the master’s interest, the master will be 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 be for the interest of the master.

“In such case the.master would not be 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 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. Consumers' Ice Co., 73 N. Y. 543-547; Ochsenbein v. Shapley, 85 id. 214-220.)

- In Hoffman v. N. Y. C. & H. R. R. R. Co. (87 N. Y. 25, 32) ■it is said “ the defendant is responsible, unless the brateman 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).

Three requests to charge Were made by defendant’s counsel, each One' of which was a separate .and distinct 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 rulej 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 be 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 car, in the interest of defendant, and in obe’dience to his instructions. Such a purpose clearly would .-not exonerate the'defendant.

The test is not the “ quality of the act,” but 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 "requests 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 it 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, but" if the altercation was one between the conductor and the plaintiff, wholly uncom nected 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 request’s which lie. 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.

Herrick, Merwin and Putnam, JJ., concurred; Landon, J., concurred in result.

Judgment and order affirmed, with costs.  