Canton Cotton Warehouse Co. v. Pool

delivered the opinion of the court.

The act done here was not the act of the master. It was not done in the master’s business, but was an enterprise wholly disconnected therefrom, done exclusively on their own account-by the employes, for the highly reprehensible purpose of .playing a practical joke. It very clearly appears that though the implements used were those of the company, used in certain ways in the making of ice, they were in this act not used as they would be in the making of ice. The slamming of the coal scoop on the iron stairs, and the shutting off of steam, usually self-regulating by the automatic air pump, the turning out of the electric lights, and the yelling of the voices were not modes of making ice, but were a use solely for a mischievous purpose of those engaged in it, and in no sense an act done in the master’s business. The case is wholly different from Richberger’s case, 73 Miss., 161, s.c. 18 South., 922, s.c. 31 L. R. A., 390. There Eichberger was in the express company’s office, transacting express business. The agent was refunding him an *156overcharge, and taking a receipt therefor, and “immediately” upon the signing of the receipt, so that there could be no logical separation of what he did in the assault from the transaction of the express business, committed the assault. The appellee here was engaged in no business with the appellant, buying no ice. No employe of appellant was engaged in transacting any business of his master’s with appellee. The acts done in the perpetration of this practical joke were wholly out of the line of their employment. That the appellee has no cause of action against appellant is made plain by the authorities collected in the exhaustive note to Ritchie v. Waller (Conn.), 27 L. R. A., 161, s.c. 28 Atl., 29, and by Railroad Co. v. Latham, 72 Miss., 32, s.c. 16 South., 757; and see specially Rounds v. Railroad Co., 64 N. Y., 136; Bowler v. O’ Connell (Mass.), 38 N. E., 498, s.c. 27 L. R. A., 173; Smith v. Railroad Co., 78 Hun, 524, s.c. 29 N. Y. Sup., 540. In Bowler’s case, the court say: “An act done by a servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not the master’s act.” This is said to be too broad a statement of the law, at page 164, 27 L. R. A., in the note referred to, because it does not provide for the “misuse of a dangerous machine, as in Railway Co. v. Scoville, 10 C. C. A., 479, s.c. 62 Fed., 730, s.c. 27 L. R. A., 179,” a case relied on by appellant, affirmed by a divided court. But manifestly this is not a case like cases where the question is as to the custody of dangerous implements, as steam engines, dynamite, torpedoes, etc. The ordinary appliances in use in an ice factory cannot be so classed, certainly not a coal scoop and electric lights. The true test is very clearly stated in Smith’s case, 78 Hun, 524, s.c. 29 N. Y. Sup., 540, a torpedo case. Says the court: “If by doing what he did he went outside of his employment in order to effect a purpose of his own, in exploding the torpedoes for his own amusement and not for the purpose of signaling the train, then the company would not be liable.”

*157The inquiry is not whether the act in question in any case was clone, so far as time is concerned, while the servant is engaged in the master’s business, nor as to the mode or manner of doing it; whether in doing the act he uses the appliances of the master, but whether, from the nature of the act itself as actually done, it was an act done in the master’s business or wholly disconnected therefrom by the servant, not as servant, but as an individual on his own account. In the light of these principles it is clear there was nothing to go to the jury, and the peremptory charge asked by the defendant should have been given.

Reversed ancl remanded.