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the servant was to do the particular act that produced the injury in question. It is enough if the act was within the scope of his employment, and, if so, the master is liable, even though the servant acted willfully, and in direct violation of his orders.” Continuing on page 553: "It is generally sufficient to make the master responsible that he gave to the servant an authority or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment.”. “The master who puts the servant in a place of trust or responsibility or commits to him the management of his business or the care of his property is justly held responsible when the servant through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances or the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury
upon another." (Conley (Cooley ?) on Torts, p. 538.) In Railway v. Hackett, 58 Ark. 387, 24 S. W. 882, this court said: “The question is, Was he acting in the course of his employment ?” “If he was, the company is liable in damages for any wrongful act of his in the course of his employment, resulting in injury to another, though he exceeded his authority as such night watchman.” “A servant may do an act expressly forbidden by his employer, and yet if it be within the scope of his authority, the employer may be liable for resulting injury. This rule is constantly enforced in the cases against railroads, electric light, and gas companies, and it applies to private persons who employ servants to transact their business.' (Pine Bluff W. & L. Co. v. Schneider, 62 Ark. 116, 34 S. W. 548, 33 L. R. A. 366.) This court on a question of this kind quoted with approval Clark & Skyles Law of Agency: “It is a well-established rule that a principal is liable for all torts, negligence, or rather malfeasances committed by his agent in the course of his employment and for the principal's benefit, although such torts or negligences are not authorized by the principal, or even though he had forbidden or disapproved of them and the agent disobeyed or deviated from his instructions in committing them." “This rule is not based on the ground that the agent had authority, express or implied, to commit the tort, as is the case with contractual obligations binding on the principal; but is based on the ground that in such cases the agent represents the principal, and all acts done by the agent in the course of his employment are of the principal, and it is also on the ground of public policy that, where one of two innocent persons must suffer from the agent's wrongful act, it is just and reasonable that the principal, who has put it in the agent's power to commit such wrong, should bear the loss rather than the innocent third person.” (St. L., I. M. & S. R. Co. v. Grant, 75 Ark. 585, 88 S. W. 582.) There was no error in giving the instruction, and, on the whole, the instructions fairly presented the issues of fact to the jury. The evidence, although somewhat contradictory, tended strongly to show that the deceased was unlawfully and brutally whipped and beaten on his bare back with a leather strap 4 inches wide, and from one-half to three-fourths of an inch thick, and about 30 inches long, attached to a staff or handle about 18 inches long, by defendant's agents and warden; that he wielded the strap with both hands striking more licks than felons in the penitentiary are permitted to be whipped and on the bare skin, even if against defendant's directions; that deceased was compelled to work thereafter in the sun till he reeled and staggered like a drunken man, and was sent from the field groaning with pain and urinating blood, and died that night early without being furnished any medical attention; that the beating might have and probably did produce death, and the jury so found, and the evidence amply sustains the verdict.
With reference to the question as to whether or not the verdict was excessive the court said:
Was Wm. Reynolds' life of the value of $3,750 to his widow and minor children? He was a strong man of sound bodily health, the sole support of his wife and children, about 31 years old, with an expectancy of life of 34 years, and shown to have been earning shortly before his death from $50 to $60 a month, most of which was contributed to the maintenance and support of his family, and the jury fixed the damages at that sum which we do not regard excessive.
Finding no error in the case, it is affirmed.
EMPLOYERS' LIABILITY-INCOMPETENT FELLOW SERVANT-EviDENCE—Robbins v. Lewiston, Augusta and Waterville Street Railway Company, Supreme Judicial Court of Maine, 17 Atlantic Reporter, page 537.—This case was an action by Oceolar Robbins, employed as a motorman by the defendant company, to recover damages for an injury received by him on July 20, 1907, through the negligence, as was alleged, of an incompetent crew on another car. The particular negligence of Taylor, the motorman, and Sanborn, the conductor, of the other car, consisted in the violation of an order to stop the special car which they were operating at the proper place, whereby a collision with the plaintiff's car was occasioned, resulting in serious and permanent injuries. Judgment was awarded Robbins in the supreme judicial court of Kennebec County, and exceptions were taken to the admission of evidence as to prior acts of the members of the negligent crew such as made the employing company liable for injuries resulting from their retention in service. These exceptions were overruled and the judgment of the lower court stood.
The views of the appellate court appear in the following extract from its opinion, which was delivered by Judge Spear, August 15, 1910. Having stated the facts, Judge Spear said:
From this statement it will be seen that the plaintiff's action rests upon the claim that the defendant was negligent in the selection and retention of its servants Taylor and Sanborn, especially Taylor, the motorman, when it knew, or by the exercise of due care should have known, his incompetency. The negligent act complained of was the running into the block without orders and against orders in violation of the rule.
The fate of the motion depends upon the result of the exceptions. If the exceptions prevail, the evidence in support of the verdict disappears. If the exceptions fail, the verdict is well founded. In other words, the evidence, if admissible, amply sustains both the charge of unfitness of the servant and such notice thereof to the defendant that it knew or by due care ought to have known of his incompetency.
But it is contended that the negligent acts of the servant which by the verdict we must assume to be proven were not of such a character as to fairly warrant the conclusion of incompetency. We think differently. Time after time he ran his car, in violation of rules and orders and against the protest even of the conductor, round curves at an excessive rate of speed. So persistently and recklessly did he do this that one conductor, after repeated reports of these willful acts of misconduct to the superintendent of the defendant company, resigned his position rather than continue the hazard of further employment with this young man acting as motorman. He violated the controller handle rule, which forbids a motorman to leave the car without taking his controller handle with him. He ordered the substation to shut down the power, clearly exceeding his authority. He refused to exchange passengers as ordered, thereby disobeying the direct order of the superintendent. He refused to obey the conductor's signal bells.
These varied acts of insubordination seem to us more potent in their tendency to establish character for willful disobedience than the repetition for an equal number of times of the same act, involving the precise element of character. The conduct of this servant as manifested by these various acts fully brings him within the rule of legal incompetency. In the legal sense, incompetency or unfitness is not predicated solely upon a want of ability and comprehension. It may be found side by side with even eminent skill, respecting the particular thing to be done, and yet that skill so often and persistently exercised in violation of rules, orders, and regulations as to establish a character for such reckless acts as to render a person, in every way mentally competent, legally incompetent. Such is the theory of the decisions.
In Consol. Coal Co. v. Seniger, 179 III. 370, 53 N. E. 733, the court say: "One is incompetent who is wanting in the requisite qualifications for the business intrusted to him. (He) was incompetent, if he was wanting in the qualifications required for the performance of the service, whether arising out of lack of knowledge or capacity, or other imprudence, indolence, or habitual carelessness.” In Maitland v. Gilbert Paper Co., 97 Wis. 476, 72 N. W. 1129 [65 Am. St. Rep. 137), the court say: "A competent man is a reliable man. Incompetency exists not alone in physical or mental attributes, but in the disposition with which a person performs his duties, and, though he may be physically and mentally able to do all that is required of him, his disposition toward his work, and toward his employer and toward fellow servants, may make him an incompetent man.” And it has been said in the recent case of Hamann v. Bridge Co., 127 Wis. 550, 105 N. W. 1084: “Incompetence in the law of negligence means want of ability suitable to the task, either as regards natural qualities or experience, or deficiency of disposition to use one's abilities and experience properly."
Therefore, if the evidence of these specific acts of the servant was admissible to prove both incompetency and knowledge, then, the defendant being amply charged with knowledge, the jury were authorized to find the servant incompetent, and to declare it negligence in longer retaining this young man in its employ as a motorman.
This brings us to the question raised by the exceptions: Is the evidence of specific acts of prior negligence admissible to prove (1) incompetency, (2) knowledge to the master? All the exceptions but one, which will be discussed later, present the same question of law, and may be considered together.
The defendant does not question the assertion that the great weight of authority is in favor of the admission of such testimony, and cites only Massachusetts and Pennsylvania in opposition. On the other hand, it appears from the plaintiff's brief that 29 of the 31 States that have passed upon this question have decided in the affirmative. The precise question has never been raised in this State. We are therefore free to adopt that rule which seems best calculated upon the principles of reason and authority to attain the best results. Upon a careful examination of the authorities, it is the opinion of the court that the rule admitting specific acts of prior negligence tending to prove the incompetency of a servant when the master has actual knowledge of such acts or by the exercise of due care should have had such knowledge is the safer and better rule to establish. In arriving at this conclusion, we have carefully reviewed and considered the reasons advanced by the courts for the directly opposite views by them declared.
It is conceded that the plaintiff, when injured, was in the discharge of his duties and in the exercise of due care. The evidence discloses that he was injured by the negligence of the defendant's servant, that the servant was in fact incompetent, and that his incompetency was known to the defendant when the plaintiff was injured and prior thereto, and yet he was retained in its employ.
Motion and exceptions overruled.
EMPLOYERS' LIABILITY-NEW TRIAL—SUCCESSIVE VERDICTS- — DAMAGES.-Carr v. American Locomotive Company, Supreme Court of Rhode Island, 77 Atlantic Reporter, page 104.-Peter F. Carr was employed by the defendant company as a rivet heater in the boiler shop, in which oil was used as a fuel, and was injured as a result of an alleged defective condition of the valve supplying the oil to the furnace. The defect was said to consist in the condition of the threads on the valve stem which had become so worn that when partly opened it was in danger of being blown out by the pressure necessary to feed the oil as a spray for burning. Carr testified that on June 28, 1902, he started the fire in his heater in the usual way, and that when he had given the valve stem two or three turns it blew out and a stream of oil poured upon him which became ignited and seriously burned his body, face, and arms. The company offered in court as an exhibit, marked "Exhibit A,” a combination of valves claimed by it to be the identical apparatus which Carr was using at the time that he was injured. This Carr denied, so that the identity of the valve became an important question in determining the negligence of the employer and his corresponding liability. During the statement of the facts involved, Judge Sweetland who delivered the opinion of the court said:
This case has been tried four times. The first trial was in the common pleas division of the supreme court and resulted in a disagree ment of the jury. The second trial was in the common pleas division of the supreme court, and the jury returned a verdict for the plaintiff for $18,000, with a special finding that Exhibit A includes the identical burner valve and stem which were operated by the plaintiff at the time of the accident. Upon petition the appellate division of the supreme court granted a new trial. (Carr v. American Locomotive Co., 26 R. I. 180, 58 Atl. 678.) Upon the establishment of the superior court this case was transferred to that court and the last two trials have been in that court. The third trial resulted in a verdict for the plaintiff for $20,000, with a special finding that the burner valve stem forming a part of Exhibit A was not the stem operated by the plaintiff at the time of the accident. The justice who presided at that trial denied the defendant's motion for a new trial. Upon exception to that decision this court sustained the exception and ordered a new trial. (Carr v. American Locomotive Co., 29 R. I. 276, 70 Atl. 196.) A fourth and last trial was had with the result herein stated, of a verdict of $22,895, for the plaintiff, with a special finding by the jury that the burner valve stem forming a part of Exhibit A was not the stem operated by the plaintiff at the time of the accident.
The present appeal, therefore, was from the last trial in the superior court, based on exceptions made by both parties, Carr excepting to an order by the superior court granting a new trial in that court, and the company filing numerous exceptions to various rulings and instructions of the presiding justice. The trial resulted in the judgment of the superior court being affirmed and the order for a new trial reversed with directions that judgment be entered upon the verdict, none of the company's exceptions being allowed. The opinion of the court, which was delivered on July 12, 1910, is in part as follows:
From the record before us it does not appear whether at the first two trials the justices were asked to direct verdicts in favor of the defendant; but in each instance the case was submitted to the jury. At the third trial a motion was made that the jury be directed to return a verdict for the defendant. The motion was denied, and this court said in Carr v. American Locomotive Co., 29 R. I., at page 290, 70 Atl., at page 203: "The forty-sixth exception was taken to the court's denial of a motion to direct a verdict for the defendant upon all the testimony. The evidence was conflicting and was properly left to the jury.". At the last trial the justice presiding refused to direct a verdict in the defendant's favor. We have carefully read and considered the transcript of the testimony given at the last trial. The plaintiff has produced the testimony of seven new witnesses in support of his claim as to the defendant's negligence and the identity of the middle stem on Exhibit A. The case for the plaintiff is much stronger than at the former trial.