The opinion
Walker, L,
dissenting: I concur in the opinion of Justice Connor. It seems to me that a master cannot be liable for the malicious tort of his servant, committed, not in the line of his duty nor within the scope of the. authority which is conferred *112 upon bim by the master, but of his own head and imagination and prompted solely by his own vicious disposition. As we said in Daniel v. Railroad, 136 N. C., 522 , which is cited with approval by our brethren who differ with us, “It is not intended to assert that a principal cannot be held responsible for the willful or malicious acts of the agent, when done within the scope of his authority, but that he is not liable for such acts unless previously and expressly authorized or subsequently ratified, when they are done outside of the course of the agent’s emjfioyment and beyond the scope of his authority, as when the agent ’steps aside from the duties assigned to him by the principal to gratify some personal animosity or to give vent to some private feeling of his own (McManus v. Cricked, 1 East, 106) ; and, as is forcibly stated by Lord Kenyon in the case cited, quoting in part from Lord Holt, ‘No master is chargeable with the acts of his servant but when he acts in the execution of the authority given him.’ Now, when a servant quits sight of the object for which he is employed, and, without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for his acts.” What better authority can we invoke in support .of our position than the opinions of the Court of King’s Bench, as delivered by Lord Holt and Lord Kenyon. But this Court has gone very far, though not by any means to the verge, in sustaining what I conceive to be the only just and safe rule in cases of this kind. The principle announced (in the case to which I refer) by the present Chief Justice, speaking for the Court, is this: That a master is not responsible for any illegal action taken or directed by his servant which he did not advise, consent to or participate in, and which was not justified by any authority he had given. Moore v. Cohen, 128 N. C., 345 . I quote almost literally from the opinion, and certainly the substance of what was decided is given. Numerous authori *113 ties are cited for tbis position as fully settling tbe principle. Ferguson v. Terry, 40 Ky. (1 B. Mon.), 96; Welsh v. Cochrane, 63 N. Y., 181 ; Brown v. Kindall, 90 Mass. (8 Alto), 209; Fire Association v. Fleming, 78 Ga., 733 , and Cooley on Torts, 131. In that case (Moore v. Cohen) an attorney who had been employed to collect a claim undertook, in good faith, to have the defendant arrested upon the ground of fraud committed in contracting tire debt, without any express authority of his principal or any subsequent ratification by him. That would appear to be more nearly within the scope of the attorney’s authority than the malicious and wanton act of the engineer in blowing the whistle of his engine for no other purpose than to frighten the horses on the public highway and, as a necessary consequence, injuring the plaintiff, was within the scope of his employment, and yet the Court held, in Moore v. Cohen, that the principal was not liable for his attorney’s unwarranted act. As said by Justice Blackburn, in discussing a somewhat similar tortious act, when it was attempted to charge the master with liability, there is no difference, and can be none, between a railroad company, which is a corporation, and an individual. The principle must apply to every class of employment, and every merchant will be responsible for a similar act of his agent and every person for the act of his butler or coachman. To pursue this idea further, the former will be mulcted in heavy damages for the willful and malicious act of his employee or laborer who is in charge of stationary or portable machines, or of implements just as liable to frighten an animal as a steam engine operated by steam; the owner of an automobile for a similar act of his chauffeur, and so on, indefinitely. We cannot coin a principle and restrict it to special cases if it is in its very nature inherently applicable to all other cases of a similar kind, for then we must extend it to them and thus carry it by logical sequence to its natural result. . When we stop short of so applying it because of any hardship which *114 may ensue in the particular ease, we virtually admit its unsoundness, for a just and correct legal principle should naturally and consistently apply to all cases which may legitimately come within its reach. The true doctrine is well stated in Ferguson v. Terry, 40 Ky., 96 , as follows: No one is liable for trespasses committed by others in his employ unless he gives previous authority or command to do the tortious act, or afterwards assents thereto, or it is done in the discharge of the business which the agent was appointed to do. In the last two cases the law will imply authority to do the unlawful act. See Daniel v. Railroad, 136 N. C., 517; Jackson v. Tel. Co., 139 N. C., 347 .
In Roberts v. Railroad, 143 N. C., 176 , Justice IJoke, quoting from Wood on Master and Servant, sec. 307, and approving what is'said therein, and also what is decided in Sawyer v. Railroad, 142 N. C., 1 , to the same effect, thus states the doctrine: “The simple test is Avhether they were acts within the scope of his employment — not whether they were done while prosecuting the master’s business," but whether they were done by the servant in furtherance thereof, and were such as may be fairly said to be authorized by him. By 'authorized’ is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and written orders. An employer who leaves to an employee to do certain acts for him according to the employee’s judgment and discretion is answerable for the manner or occasion of doing it, provided it is done bona 'fide and within the scope of the servant’s express or implied authority, and not from mere caprice or wantonness and wholly outside of the duties conferred upon him.’3 (Italics mine). And again, in the same case, at page 180, quoting and approving what is said in Mott v. Ice Co., 73 N. Y., 543 , he says: “For the acts of a servant, in the general scope of his employment, while engaged in his master’s busi *115 ness, and done with a view to the furtherance of that business and the master’s interests,, the latter is responsible, whether the act be done negligently, wantonly or even willfully. The quality of the act' does not excuse. But if the employee, without regard to his service, or to accomplish some purpose of his own, act maliciously or wantonly, the employer is not responsible.” (Italics mine). He then adds: “The general doctrine on the subject is fully considered in the case of Daniel v. Railroad, 136 N. C., 527 ,” which case and Jackson v. Tel. Co., 139 N. C., 347 ," were approved in Sawyer v. Railroad, 142 N. C., at p. 8 . I think the case of Saivyer v. Railroad, supra, is also, in principle, clearly in conflict with the doctrine now about to be announced.
Justice Gonnor has so lucidly and fully explained the distinguishing characteristics of the principles in the law of torts which determine the liability or nonliability of the master for the acts of his servant that discussion is rendered useless. I could not, though, be silent when the Court is establishing a precedent which, in my judgment, is calculated not only to extend the liability of the principal for the act of his agent, and the master for the act of his servant, far beyond the settled principle of the law relating to that question, but to seriously embarrass and hamper the business transactions of the merchant, the farmer and every person who, in his ordinary affairs, must employ agents or servants to assist him. My apprehensions will be fully justified if the doctrine thus settled by the decision in this case is hereafter logically and fairly applied, as it should be, to all cases of a like kind coming within its scope.
When we charge the defendant with liability, upon the facts stated in this record, for the reason that it, a lumber company, is using its track and appurtenances for its own purposes, even if it had carried passengers or freight for accommodation, we are going a long way towards unsettling the foundation upon which the law of torts has rested for so long *116 a time; and I view tbis radical departure from the cardinal principle of that law, not only with apprehension, as I have said, but with alarm. We must sooner or later abrogate or greatly modify the rule as thus formulated, or the business of this State, which is largely conducted through agents and servants, must be seriously hindered, to say the least. This Court cannot well afford to state a principle of law as applicable to the ordinary and everyday affairs of our people, and then refuse to give it the full scope to which it is entitled when it may be found to operate oppressively. It must be remembered that we are making precedents for all time to come, and not merely deciding cases.
As I do not think the plaintiff should recover at all, I must, of course’ agree with Justices Connor and Brown that he cannot in any event be awarded vindictive damages.