On petition for rehearing it is contended that in our opinion filed herein on August 2, 1940, we over-looked and failed to consider the question of whether or not the employer employed a competent vice-principal. That question was not involved in this case because it cannot be logically contended that the injury complained of was inflicted by the vice-principal by the commission or omission or the improper performance of some act which came within the purview of his employment.
It, therefore, follows that this case is not ruled by those cases which hold that the employer may be held liable for the wrongful acts of an incompetent vice-principal. *Page 158
Admittedly, it is the duty of the principal employing a vice-principal to employ one who is competent to perform the duties contemplated within the scope of his employment, but the principal is not responsible for the personal conduct of the vice-principal in matters which in nowise come within the scope of the employment.
The cases cited in our opinion, supra, support this legal principle.
The Alabama case of Western Railway of Ala. v. Milligan,135 Ala, 205, 33 So. 438, was a much stronger case than this and there the court held:
"This whole case turns upon the question we have been considering: Whether Cunningham's alleged act of pushing or punching or touching Milligan while the latter was about to brush off the table upon which the knives were fixed was an act of superintendence. Reaching the conclusion that this was not an act of superintendence, and that of consequence the defendant was not responsible for it, our further inevitable conclusion is that the city court erred in refusing to give the affirmative charge requested by the defendant."
It, therefore, follows that the petition for rehearing should be, and is, denied.
So ordered.
TERRELL, C. J., WHITFIELD, BUFORD and CHAPMAN, J. J., concur.
Justices BROWN and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court. *Page 159