#### BERNICE LORENE ROBINSON, by Her Next Friend, MRS. IRENE ROBINSON, v. L. F. McALHANEY and JACK HEWITT.

(Filed 28 September, 1938.)

1. Master and Servant § 21b — In absence of ratification, master may be held liable for servant’s tort only if committed in course of employment.

In order to hold the master liable for the negligent or malicious tort of his servant, the injured third party must show that the act done by the servant was in the scope of his employment and in furtherance of the work which the servant was employed to do, or that the master ratified the wrong, and in the absence of ratification the master may not be held liable for a tort committed by the servant in a spirit of vindictiveness or to gratify his personal animosity, or to carry out an independent purpose of his own outside the scope of his employment.

2. Same — Under the evidence, whether employee was engaged in employment at the time and committed the tort in furtherance thereof, held for jury.

The evidence tended to show that defendant employer was having furniture moved out of the cabin occupied by plaintiff and her sister and mother, that his employee was' helping truckmen remove the furniture, and as a result of an altercation with plaintiff, struck her. The evidence was conflicting as to whether defendant employer instructed his employee to help remove the furniture or that defendant employer knew that he was in fact helping the truckmen remove same. Held: Under the evidence, it was for the jury to determine whether the employee was about the employer’s business at the time, and if so, whether he was acting in the scope of his employment in assaulting plaintiff, and on appeal from the county court, the Superior Court properly sustained defendant employer’s exceptions to the charge of the trial court in instructing the jury in effect that if the employer saw his employee about to commit the assault and did not stop him it would establish as a matter of law the employer’s liability therefor, and in failing to give instructions requested that if the employee stepped aside from his employment and committed the tort in a spirit of personal vindictiveness, the employer would not be liable.

3. Damages § 8 — Awarding of punitive damages is in the discretion of the jury.

The awarding of punitive damages is in the discretion of the jury even though the evidence is sufficient to support an award, and an instruction that if the jury found that the assault complained of was committed under circumstances of oppression or rudeness, it would be the duty of the jury to award punitive damages, is error.

Appeal by plaintiff from Alley, J., at April Term, 1938, of BuNcombe.

Affirmed.

This is a civil action instituted in the general county court of Buncombe County to recover damages for the wrongful and malicious assault *181upon tbe plaintiff by the defendant Hewitt; it being alleged that said defendant was at the time acting as the agent and employee of the defendant L. F. McAlhaney.

There was judgment for the plaintiff in the general county court. The defendants, assigning error, appealed to the Superior Court.

The defendant L. F. McAlhaney was in possession of a piece of property known as the Cherokee Tourist Home located on the waters of Oconaluftee Biver, at the entrance to the Great Smoky Mountains National Park in Swain County. There were a number of cabins on the property, one of which was occupied by the plaintiff and her mother and sister. The defendant McAlhaney operated the Cherokee Tavern, including dining room, a souvenir shop, a filling station and rooms, and in connection therewith employed Jack Hewitt. • Plaintiff’s mother went to Asheville, leaving furniture and other personal property in the cabin occupied by her. The defendant McAlhaney sent a truck and driver with helpers to move out the personal property left by plaintiff’s mother and to place other furniture therein. The plaintiff and her sister objected. Thereupon Mr. Bryson, who was operating the truck, went to find Mr. McAlhaney. As he was away he spoke to Mr. Hewitt, who told him that he would have to wait until Mr, McAlhaney returned. Upon Mr. McAlhaney’s return he went to the cabin with Dan Bryson, went in the cabin and began to direct the removal of the furniture. Hewitt followed and began to move the furniture from the porch to the truck. Plaintiff forbade the defendant Hewitt to enter the cabin. In the altercation which followed Hewitt struck the plaintiff.

In the county court issues were submitted to and answered by the jury as follows :

“1. Did the defendant Hewitt assault the plaintiff, as alleged in the complaint? Answer: ‘Yes.’

“2. If so, was the defendant Hewitt at the time of the assault, and in making said assault, acting as the duly authorized agent of his co-defendant, L. F. McAlhaney? Answer: ‘Yes.’

“3. What amount, if any, is plaintiff entitled to recover as compensatory damage ? Answer : ‘$1,000.00.’

“4. What amount, if any, is plaintiff entitled to recover as punitive damage ? Answer: ‘$100.00.’ ”

When the cause came on to be heard in the Superior Court, the court below sustained certain exceptive assignments of error made by the defendants and ordered a new trial, except as to the first issue. The plaintiff excepted and appealed.

Weaver & Miller and Irwin Monk for plaintiff, appellant.

Dan K. Moore, Baxter Jones, and Jones, Ward ■& Jones for defendants, appellees.

*182BarNhill, J.

Tbis cause came on to be beard in tbe court below on questions of law raised by tbe defendants’ exceptive assignments of error as provided by tbe act creating tbe general county court of Buncombe County. There were 47 assignments of error made by tbe defendants upon their appeal from tbe general county court. Of these tbe court below sustained twenty-five and overruled tbe others.

In tbe instant case tbe court below acted as an intermediate court of appeals and it was necessary for it to rule upon all of defendants’ assignments of error. However, it is not necessary for us to discuss all of tbe questions presented on plaintiff’s appeal. Disposition of two of tbe assignments of error requires tbe affirmance of tbe judgment below. Tbe others may not again arise on tbe retrial of tbe cause.

Tbe judge of tbe general county court declined to instruct tbe jury as requested by tbe defendants as follows : “Tbe court charges tbe jury that where tbe servant steps aside from bis master’s business for however short a time to commit a wrong not connected with such business tbe relation of master and'servant will be deemed for tbe time suspended and that tbe master is not liable therefor.” Instead, on tbis aspect of tbe case, tbe court charged tbe jury: “Now, if you find from tbe evidence by tbe greater weight, tbe burden being on tbe plaintiff to so satisfy you that at tbe time the assault was committed the defendant Hewitt, was acting under tbe direction and authority of tbe defendant McAlhaney, either express or implied; that'is, tbe circumstances may be such as to warrant an implication that be was acting under bis authority if be saw him there working and did not stop him, or if be saw him about to commit tbe assault and did not interfere and intervene to prevent it tbe law would imply that tbe defendant Hewitt was acting for him. Or, if you find from tbe evidence, and tbe greater weight of tbe evidence, that be was expressly instructed, as tbe plaintiff contends that be was, to help these furniture men move tbe furniture into tbe cabin, then be would be acting within tbe scope of bis employment and that would constitute him tbe agent for tbe purpose of helping to move tbe furniture in and would authorize you to answer tbe issue ‘Yes.’ ”

Tbe master is liable for tbe negligence and for tbe malicious torts of bis employee whenever such wrongs are committed by tbe employee in tbe course of bis employment and within its scope. Ange v. Woodmen, 173 N. C., 33, 91 S. E., 586; Jackson v. Telephone Co., 139 N. C., 347, 51 S. E., 1015; Munick v. Durham, 181 N. C., 188, 106 S. E., 665. Tbe decisive question is: “Was tbe agent’s act in tbe course of bis employment and whilst about tbe master’s business?” No ironclad test can be given, but in all cases tbe question whether tbe act was committed by tbe servant in tbe service of bis employer or for bis own purpose is one for tbe jury in view of all tbe circumstances. "Wood, Master and Servant, *183594; Hussey v. R. R., 98 N. C., 34, 3 S. E., 923; Daniel v. R. R., 117 N. C., 592, 23 S. E., 327. Tbe 'master is not liable for tbe resulting damage when bis servant steps aside from tbe master’s business to commit a wrong not connected witb bis employment. Marlowe v. Bland, 154 N. C., 140, 69 S. E., 752; Dover v. Mfg. Co., 157 N. C., 324, 72 S. E., 1067; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137; Snow v. DeButts, 212 N. C., 120; Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Roberts v. R. R., 143 N. C., 176, 55 S. E., 509. To charge a third party witb liability for tbe wrongs of another it must not only appear that tbe one who committed tbe wrong was in fact tbe agent or employee of tbe third party, but it must also be shown that at tbe time tbe wrong was committed tbe wrongdoer was about bis master’s business and acting within tbe range of bis employment, unless bis conduct was thereafter ratified by tbe principal. Snow v. DeButts, supra, and cases there cited. Tbe test is: Was it done within tbe scope of bis employment and in tbe prosecution and furtherance of tbe business which was given to him to do? If an assault is committed by tbe servant, not as a means or for tbe purpose of performing tbe work be was employed to do, but in a spirit of vindictiveness or to gratify bis personal animosity or to carry out an independent purpose of bis own, then tbe master is not liable. 30 C. J., 1307, L. E. A., 1918 F, 534; 10 A. L. E., 1079; Jackson v. Scheiber, 209 N. C., 441, 184 S. E., 17; Snow v. DeButts, supra.

There was conflicting evidence as to whether Hewitt was an employee of McAlhaney in assisting in tbe removal of property from tbe cabin, and as to whether tbe defendant McAlhaney knew that Hewitt was in fact assisting tbe truckmen. It was for tbe jury to determine whether Hewitt at tbe time was a servant and employee of McAlhaney and was about bis master’s business. It was likewise a question of fact for tbe jury as to whether, even though Hewitt was at tbe time a servant of McAlhaney, be acted within tbe scope of bis authority and was about bis master’s business in assaulting plaintiff, or stepped aside from bis employment to commit a wrong prompted by a spirit of vindictiveness or to gratify bis personal animosity or to carry out an independent purpose of bis own. Neither tbe fact that be was there working and McAlhaney did not stop him, nor tbe fact (if it be such) that McAl-haney saw him about to commit tbe assault and did not interfere and intervene to prevent it, establishes as a matter of law that Hewitt was acting for McAlhaney in committing tbe assault as tbe charge of tbe court clearly implies. Nor does proof that Hewitt was authorized to assist in tbe removal of tbe furniture necessarily require tbe conclusion that be .was about, bis master’s business in committing tbe assault. This is a question for tbe jury. It follows that there was error in declining to give tbe prayer requested by tbe defendant, as well as in tbe quoted portion of tbe charge.

*184Tbe court likewise charged the jury on the fourth issue: “If you find that the assault was committed under circumstances of oppression or rudeness, then it would be your duty to answer the issue in some amount, whatever you consider, based on all the evidence, would be fair and reasonable under the circumstances, not to be arbitrary, to act only upon the evidence which you have heard.”

The court below correctly ruled that this charge constituted prejudicial error.

A jury is never compelled to award punitive damages. If the evidence is such as to support an award of punitive damages it is still discretionary with the jury as to whether such damages will be allowed, subject only to the inherent power of the court to set aside an excessive or disproportionate award. As said in Hayes v. R. R., 141 N. C., 195, 53 S. E., 847: “This Court has said in many cases that punitive damages may be-allowed, or not, as the jury sees proper, but they have no right to allow them unless they draw from the evidence the conclusion that the wrongful act was accompanied by fraud, malice, recklessness, oppression, or other willful and wanton aggravation on the part of the defendant. In such cases the matter is within the sound discretion of the jury.” Knowles v. R. R., 102 N. C., 59, 9 S. E., 7; Smith v. Ice Co., 159 N. C., 151, 74 S. E., 961; Motsinger v. Sink, 168 N. C., 548, 84 S. E., 847; Huffman v. R. R., 163 N. C., 171, 79 S. E., 307; Cobb v. R. R., 175 N. C., 130, 95 S. E., 92; Ford v. McAnally, 182 N. C., 419, 109 S. E., 91.

Plaintiff’s exceptive assignments of error cannot be sustained. The court below will remand the cause to the general county court of Buncombe County for a new trial upon all the issues except the first.

Affirmed.