This is a suit by the widow and children of William Boyd, deceased, to recover from the appellant and Charles Barnett and Byzer Barnett damages for the death of William Boyd, and from a judgment in their favor the appellant has brought the case to this court. The Barnetts have not joined in the appeal.
The appellant owns and operates a short railroad line, and at one of its stations named Jayess has a water tank from which its engines take water. Charles Barnett was the appellant's agent at Jayess, and one of his duties was to "keep water in the tank for the engines." *Page 599 The water was pumped into this tank by an engine, and it was the duty of Barnett to run it when necessary for that purpose. No other specific duty relative to keeping water in the tank was imposed on him. The repairs on this tank, when necessary, were made by other employees of the appellant, and no arrangement seems to have been made by the appellant for guarding its property from trespassers. Barnett suspected that the water in this tank was being drained therefrom by trespassers, and he watched the tank several nights, but failed to discover any one draining water therefrom. Thinking that he himself was being watched, and that another person would be more successful in discovering the one who was draining the tank, if it was in fact being drained, and also to be relieved from sitting up each night, he requested his brother Byzer Barnett, to guard the tank one night. While Byzer Barnett was guarding the tank, pursuant to his brother's request so to do, William Boyd appeared threat and was shot and killed by him. Charles Barnett lived near the tank, and when the killing occurred had retired to rest. He heard his brother, Byzer, tell some one to "put up his hands" and then call to him saying, "Charley, I have caught him," to which he replied, "Hold him until I get there." Before Charles arrived at the scene, Byzer shot and killed Boyd.
According to the evidence for the appellant, Boyd, after he was told to put up his hands, tried to shoot Byzer, who then shot in self-defense. But according to the evidence for the appellee, the competency of which is challenged, Boyd made no demonstration whatever.
One of the assignments of error is that the court below erred in not directing a verdict for the appellant, and we will assume, as we must, in discussing it, that Byzer Barnett killed Boyd wrongfully.
One of the several elements which enter into the liability of a master for a tort committed by one procured by his servant to assist him in the performance of the master's work is that the act complained of must have *Page 600 been committed within the course of the servant's employment and in furtherance of the master's business. 39 C.J. 1271. Charles Barnett's appointed duties (Davis v. Price, 133 Miss. 236, 97 So. 557) were to act as the appellant's station agent at Jayess and "to keep water in the tank for the engines." He was not instructed to prevent trespasses from being committed on the property of the appellant; consequently, so to do was not within the course or scope of his employment unless it was within the scope of his duty to keep water in the tank. It is true that preventing water being taken out of the tank by trespassers bore some relation to Barnett's duty to keep water in the tank, but it bore no relation to the manner in which he was to discharge that duty, which, it is manifest from the record, was by pumping water into the tank. Guarding the appellant's property from trespassers is a duty so different in character from that of pumping water into one of its tanks that a duty to do the one is not embraced in and cannot be implied from a duty to do the other.
The judgment of the court below, in so far as it affects the appellant, will be reversed, and the judgment which the court below should have rendered will be rendered here; that is, that the cause in so far as it affects the appellant be dismissed.
Reversed, and judgment here.