#### EARL FERGUSON, by His Next Friend, J. F. FERGUSON, v. REX SPINNING COMPANY.

(Filed 13 February, 1929.)

Master and Servant — Master’s Liability for Injuries to Third Persons— Scope of Employment.'

Where a servant by his own independent act injures another servant of the employer working under him, whether wilfully or otherwise, entirely beyond the scope of his employment, and there is nothing to show that the master had actual or implied knowledge of any viciousness or recklessness of the employee committing the act, the master is not liable in damages as a matter of law for the injury thus inflicted.

Appeal by defendant from Townsend, Special Judge, and a jury, at May Special Term, 1928, of G-astoN.

Reversed.

Tbis is an action for actionable negligence brought by J. E. Ferguson, next friend of Earl Ferguson, bis son, against defendant.

Earl Ferguson was a “doffer boy,” fourteen years of age, working in tbe twister room of defendant’s cotton mill, under Whitey Barnes, a second-hand who was over him. He was performing his duties in a place he had a right to be. The company furnished a hose with compressed air to Barnes, the force of which was 110 pounds and sufficient to blow grease and lint off of frames in the cotton mill.

Earl Ferguson testified: “Barnes slijoped up behind me and grabbed my arm and raised me clean off the floor with the hose pipe. He grabbed my left arm, put the hose pipe to me with his other arm and raised me off the floor. I felt the air going in me, and I grabbed his arm, and I commenced sinking to the floor, and that was all I knew until I woke up on the spare floor.”

The issues submitted to the jury and their answers thereto were as follows:

“1. Was the minor plaintiff injured by reason of the negligence of the defendant, as alleged in the complaint? Answer: Yes.

“2. Was the section hand, Whitey Barnes, a,t the time of the injuries inflicted on the plaintiff, acting within the scope of his employment? Answer: Yes.

“3. Wh.at damage, if any, is plaintiff entitled to recover of the defendant? Answer: $1,700.”

Defendant introduced no evidence, and at the close of plaintiff’s evidence made a motion for judgment as in case of nonsuit. C. S., 567. The motion was refused, defendant excepted and assigned error. Defendant also submitted the following prayer for .instruction: “If you *615believe tbe evidence, as testified to by tbe witnesses, yon will answer tbe second issue No.” Tbis was refused, defendant excepted and assigned error, and appealed to tbe Supreme Court.

Carpenter & Carpenter for plaintiff.

J. Laurence J ones and Geo. B. Mason for defendant.

ClaeesoN, J.

Tbe material question for our determination was whether Whitey Barnes, under tbe facts and circumstances of tbis case, was acting within tbe “scope of bis employment?” We cannot so bold.

Tbe law, as stated in 18 R. C. L., p. 795-6, is as follows: “Acts impliedly authorized or such as are within tbe scope of tbe employment— that is, wrongs for which tbe employer may be held accountable — are not susceptible of precise or even very helpful definition by any phrase or short form of expression. Each case must be determined with a view to tbe surrounding facts and circumstances — tbe character of tbe employment and tbe nature of tbe wrongful act. Whether tbe act was or was not such as to be within tbe employment’s scope is ordinarily one of fact for tbe jury’s determination. But if the departure from the employer’s business is of a marlced and decided character the decision of the question may be within the province of the court. ‘Where a servant steps aside from the master’s business and does an act not connected with the business, which is hurtful to another, manifestly the master is not liable for such act, for the reason that having left his employer’s business, the relation of master and servant did not exist as to the wrongful act. (Italics ours.) But if tbe servant continues about tbe business of tbe employer, adopts méthods which be deems necessary, expedient or convenient, and tbe methods adopted prove hurtful to others, tbe employer is liable. ... (p. 800). Tbe rule, however, established by tbe later authorities does not make tbe responsibility of tbe employer depend on the question whether an injury inflicted by tbe employee was wilfull and intentional or unintentional, but upon tbe question whether tbe employee when be did tbe wrong acted in tbe prosecution of tbe employer’s business, and within tbe scope of bis authority, or bad stepped aside from that business, and done an individual wrong. These decisions assert that tbe employer should be held responsible for tbe acts of bis employee, when done in tbe course of bis employment with a view to tbe furtherance of bis employer’s business, and not for a purpose personal to himself, whether tbe same be done wilfully and intentionally, or merely carelessly and heedlessly.’ ”

Tbe injury was not committed when Barnes was using tbe hose for tbe purpose for which it was furnished; nor was tbe boy injured in tbe negligent use of tbe hose by Bames, but be stepped aside , and deliber*616ately and wilfully injured tbe little “doffer boy.” There is no evidence that defendant company knew or bad reasonable ground to believe that Barnes was incompetent or had vicious propensities. In this’particúlal-as to the conduct of Barnes, he was not on duty nor in the furtherance of his employment, and used excess, but he was out of the scope of his employment.

Speaking to the subject in Elmore v. R. R., 189 N. C., at p. 672, it is said: “In Ange v. Woodmen, 173 N. C., p. 35, Hoke, J., citing a wealth of authorities, says: ‘It is now fully established that corporations may be held liable for negligent and malicious torts, and that responsibility will be imputed whenever such wrongs are committed by their employees, and agents, in the course of their employment, and within its scope.’ Munick v. Durham, 181 N. C., 193. In Cook v. R. R., 128 N. C., 336, it was said: ‘Acting within the general scope of his employment means while on duty, and not that the servant was authorized to do such acts.’ Gallop v. Clark, 188 N. C., 186; Sawyer v. Gilmers, Inc., ante, 7; Southwell v. R. R., ante, 417; Seward v. R. R., 159 N. C., 241; Cooper v. R. R., 170 N. C., 492; Cotton v. Fisheries Products Co., supra (177 N. C.), 59; Jenkins v. Sou. R. R. (S. C.), 125, S. E. Rep., 912.”

We do not see how defendant company could reasonably anticipate that Barnes would go out of his way and commit the assault on the little boy.

In Riverbark v. Hines, 180 N. C., at p. 243, it is said: “He (Walton) had quit work to go to dinner, and was blowing off the dust from his clothing as was usual among the employees. The boy, Rivenbark, was familiar with this process, and asked Walton to blow the dust off his clothes. Walton did this, and when the boy turned his back Walton forcibly seized him and wantonly and recklessly blew the air through the boy’s rectum into his body and killed him. Upon these facts Walton was guilty of manslaughter, and had he nqt died, doubtless he would have been punished for it. In no view can he be said to have been acting within the scope of his employment or in the service of the defendant. The case differs very materially from Robinson v. Mfg. Co., 165 N. C., 495.”

The humanities of the case are appealing, but we cannot be led to take unjustly from one and give to another. Barnes was guilty of a cruel assault and liable in damages to plaintiff, but we cannot hold the defendant liable for his unauthorized conduct beyond and' outside of the scope of the employment. Those who in the years that have gone by enacted a wise oa.th “Will administer justice without respect to persons and do equal right to the poof and the rich.”

*617We bave heard the argument of plaintiff and read the well prepared brief and have carefully considered the case, but we are of the opinion that the judgment of nonsuit should have been sustained and the prayer of instruction given.

For the reasons given the judgment of the court below is

Reversed.