#### Wells Fargo & Company Express v. Alexander.

Opinion delivered November 15, 1920.

1. Master and servant — liability for servant’s wrongful acts.— The test of a master’s liability for his servant’s acts, is not whether they were done during the existence of the servant’s employment, but whether they were committed in the prosecution of the master’s business, and pertain to the particular duties of the servant’s employment.

2. Master and servant — liability for assault by servant — Where the agent of an express company without authority ejected plaintiff by force from a room being constructed for the express company, but which had not been completed or delivered to the express company, the company will not be liable.

Appeal from Ouachita Circuit Court; George R. Haynie, Judge;

reversed.

Mehaffy, Do^-ham £ Mehaffy, for appellant.

The court’s instructions were erroneous as given, and it was error to refuse No. 7 for appellant.

According to the undisputed evidence, it does not appear that O’Neal was acting in the line of his duty as agent when he made the assault. The court should have directed a verdict for appellant under the testimony. 93 Ark. 397; 75 Id. 579; 77 Id. 606. The master is not iiable for the acts of his servant that are beyond the scope of his employment. Cooley on Torts, 627; 33 Neb. 582; 83 Ark. 193; 4 Labatt on Master and Servant, § 1466; 113 Pac. 386; 111 Ark. 208; 26 Cyc. 1527.

The act must not only be done while the servant is engaged in his master’s service, but it must pertain to the particular act of that employment. 40 Ark. 323; 111 Id. 208. See, also, 18 So. Rep. 292; 42 Ark. 542; Cooley on Torts, p. 538. These authorities show that O’Neal acted beyond the scope of his authority and employment and appellants are not bound. None of the cases cited by appellee are applicable here.

W. R. Duffie and Powell £ Snve.ad, for appellee.

1. The evidence shows that O’Neal was the agent of the express company, and it was part of his duty to *105protect it from loss; lie was under bond for tlie faithful performance of his duties. The instructions were really more favorable to appellant than they had a right to ask. The testimony is conclusive that O’Neal was the agent of the express company and that he was acting for his principal and within the scope of his apparent or real agency, and the principal is liable for his tort, whether authorized or not. 75 Ark. 579; 96 Id. 358; 62 Id. 109; 42 Id. 542.

2. If the instructions assumed that O’Neal was the agent of the express company, the assumption was clearly warranted by the evidence, and there were no errors in them, given or refused. 90 Ark. 524; 91 Id. 97. See, also, 131 Ark. 411; 132 Id. 282; 75 Id. 579; 62 Id. 109; 96 Id. 258; 75 Id. 579.

McCulloch, C. J.

This is an action instituted by appellee to recover damages arising from an assault committed by one 0 ’Neal, alleged to be the agent of the two express companies who were defendants below, and who have prosecuted this appeal from the judgment rendered against them.

The express companies occupied, as a storage room and office, the baggage room of the St. Louis, Iron Mountain & Southern Railway Company at Malvern, Arkansas. The railway company erected a new passenger station at Malvern and prepared in the building a room for the use of the express companies. On February 23, 1916, the day the assault on appellee was made by O’Neal, the building had been completed except some inside finishing (carpentry work and painting) in the room to be occupied by the express companies. Neither the railway company nor the express companies had moved in, but were using the old station a short distance away. The proof adduced at the trial tended to show, however, that express matter, a package or crate of bananas and a box of vegetables, had been put into this room by O’Neal. The companies did not take possession of the new building until March 1, 1916. O’Neal had a key to the new ex*106press room which he turned over to the carpenter and painter in the morning, and it was returned to him at night. The workmen were employed by Nunn, who contracted to construct the building; and O’Neal received the key from a carpenter working under Nunn. Jones was the joint agent of the railway company and the express companies, and he employed O’Neal as helper or clerk. His duties, with reference to the express business, were to receive and deliver express matter and to keep the books. While the carpenters were at work in the new express room, appellee was invited into the room by them to join a party engaged in drinking whiskey, and appellee became intoxicated and went to sleep on a tool box. Others became intoxicated also and left the room in that condition. One of the workmen went out of the room to get a cup of coffee at a nearby restaurant, and as he returned O’Neal met him and demanded'the key to the door. On receiving the key, O’Neal went into the room where appellee was asleep and assaulted him. The testimony tends to show that the assault was not provoked by appellee, and that O’Neal used excessive force in ejecting appellee from the room. The jury returned a verdict in appellee’s favor and assessed damages in the sum of $1,000, which assessment was fully sustained by the testimony, if appellee is entitled to recover at all.

Numerous exceptions were saved to the ridings of the court in giving and refusing instructions, but we pass from them to a discussion of the vital question urged by counsel for appellants, as grounds for reversal, whether or not the testimony is sufficient to sustain the verdict. It is contended that, according to the undisputed evidence, it does not appear that O’Neal was acting in the line of his duty as agent of appellants when he made the assault on appellee.

This court has clearly stated the rules of law applicable to the facts of this case.

In St. L., I. M. & S. Ry. Co. v. Grant, 75 Ark. 589, we said that, if “the agent was acting for his principal *107and in pursuance of his real or apparent agency at the time the tort was committed, then it may be said that he was acting in the course of his employment, and the principal will be liable for such tort, whether authorized or not.”

And in the case of Peter Anderson & Co. v. Diaz, 77 Ark. 606, we quoted with approval the following rule announced by the Supreme Court of Nebraska in the case of Davis v. Haughteller, 33 Neb. 582:

> “The test of the master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business.”

A similar rule was announced by this court in the case of Little Rock & Fort Smith Rd. Co. v. Miles, 40 Ark. 323, where it was said:

> “The act must be done not only while the servant is engaged in his master’s service,' but it must pertain to the particular act of that employment.”

These principles were announced in other decisions of this court. St. L. & S. F. Rd. Co. v. Wyatt, 84 Ark. 193; Sweeden v. Atkinson Imp. Co., 93 Ark. 397; Robinson v. St. L., I. M. & S. Ry. Co., 111 Ark. 208; Arkansas Natural Gas Co. v. Lee, 115 Ark. 288; Chicago Mill & Lumber Co. v. Bryeans, 132 Ark. 282.

Tested by these principles, we do not think that, under the facts of this case, appellants are responsible for the tort committed by O’Neal. The premises where the assault was committed had not been delivered to appellants, and 0 ’Neal had no authority, either real or apparent, to take possession for his principals. He was acting entirely outside of the line of his employment in using- the premises for any purpose, and was not acting for his principals in attempting to eject appellee from the premises. The delegation to him of authority to handle express matter extended only to the premises selected by the principals — not to the selection of other premises on which to conduct the business; and the ques*108tion of liability is not affected by tbe fact that tbe premises had been selected by tbe principals for future use. It is the same as if tbe agent bad attempted to use, for tbe business of bis principals, premises wholly unknown to tbe latter.

The testimony does not show that O’Neal made tbe assault in protecting tbe packages of express in tbe room, but even if such proof appeared in tbe record it would not affect tbe question of appellant’s liability, for O’Neal acted beyond tbe scope of bis authority in putting tbe packages in tbe room, and this unauthorized act did not extend bis authority over tbe premises so as to make bis principals liable for bis tort committed there. Tbe testimony shows that O’Neal made tbe assault in an attempt to eject appellee from tbe room because be and bis associates were befouling tbe room in their drunken orgy, and be bad no authority from bis principals, either real or apparent, to do anything at all with reference to tbe room or in it. There is nothing in our previous decisions militating against the conclusión we have reached.

Tbe Grant case, supra, which is strongly relied on to sustain tbe liability of appellants, was one where tbe tort was committed by tbe agent at a place not on tbe premises of the principal, but there -was proof of express authority to proceed in tbe prosecution of tbe particular business of the principal at any place, and the majority of tbe court sustained tbe liability on tbe ground that there was sufficient proof of authority. That case differs materially from this one, though controlled by tbe same principles.

The case of Peter Anderson & Co. v. Diaz, supra, was one where tbe assault was committed by tbe agent on tbe premises of tbe principal but not within tbe line of bis duty, and we held, announcing and applying the rules of law before stated, that tbe principal was not liable for tbe tort of the agent. Under the facts of tbe present case, there was no real authority from tbe principals for the agent to do tbe unlawful act which be did *109commit, either at that place or elsewhere, but if he had iu fact been on the premises of the principals and attempting to protect the premises or the property situated there, he would have had apparent authority, and the principals would be responsible for his conduct. However, since O’Neal was not on the premises of his principals and had no authority, either real or apparent, to act for them at any place other than that selected by them, they are not responsible.

The judgment is therefore reversed and the cause is remanded for a new trial.

Hart, J.,

(dissenting). Mr. Justice Humphreys and the writer agree to the law as decided, but think that in its application to the facts of the present ease, there was a question for the jury as to the authority of the express messenger to eject appellee.