On Rehearing.
Both parties have filed motions for rehearing. Appellant earnestly and ably contends that, if it be conceded Lawson was the agent of appellant and that he was authorized to accept checks in payment of oil and gas sold to customers and that he falsely imprisoned the plaintiff, including an assault upon him, as a means of enforcing payment for oil and gas or making good the check, nevertheless, as a matter of law, there was no evidence to show that in doing so he was acting within the scope of his authority as agent so as to *177bind the appellant, and hence a peremptory instruction should have been given, and that this court, instead of remanding the cause, should render judgment for appellant. The gist of the argument is that, since the authority of the agent, if it existed, must be implied, there being no express authority, and since a false imprisonment or assault is not a usual means of collecting a'debt, authority to falsely imprison the appellant, or to make an assault upon him to accomplish "such purpose, cannot be implied from the authority to collect the debt. If it were necessary to imply authority to do the very act in question, namely, to falsely imprison or assault the plaintiff, this argument would be unanswerable. But such is not the case.
The principal is liable “for all the torts which his agent commits in the course of his employment.” 2 C. J. 848, § 533, note 19; Sec. Life Ins. Co. v. Stephenson (Tex. Civ. App.) 136 S. W. 1137; Grand Temple, Etc., v. Johnson (Tex. Civ. App.) 135 S. W. 173; Seffel v. Western Union Tel. Co. (Tex. Civ. App.) 65 S. W. 897. “The phrases ‘scope of authority’ and ‘course of employment’ used to express the test of a principal’s liability for the acts of his agent are generally used synonymously, although a distinction has been attempted. Much of the confusion and conflict in cases is due to the gradual extension of the rule of liability so as to impose liability for acts not authorized and even forbidden [italics ours] but nevertheless committed in the transaction of the principal’s business, and also for a failure to note the distinction between acts done by an agent within the scope and course of his employment and acts done merely during his employment. In order to render the principal liable for his agent’s torts they must have been committed while carrying out the principal’s business and it may be stated broadly that the tort of an agent is within the course of Ms employment where the agent in performing it,is endeavoring to promote his principal’s business within the scope of the actual or apparent authority conferred upon him for that purpose." (Italics ours.) 2 C. J. p. 853, § 536. The rule applies alike to all torts. The only difference between a tort consisting of the negligence of an agent and a tort consisting of the willful, and even malicious, act of the agent, such as an assault and false imprisonment, lies in the difference in the degree of probability or improbability that the act is within the scope of the agent’s authority and the resultant and corresponding ease or difficulty of making proof of such fact.
With reference to the liability of the principal for the willful torts of his agent, the decisions in this state are interpreted in Tex. Jur. as establishing the following propositions: “A principal is ordinarily liable for the wilful tort of an agent acting within the general scope of his employment for the principal’s benefit, regardless of the fact that the agent was actuated by personal malice and regardless of the fact that the agent disobeyed orders or instructions. [Italics ours.] Thus a principal, whether an individual or a corporation, is liable to the extent of actual damages for trie wilful trespass of his agent committed in the course of his agency, even if done against the principal’s orders. Again a principal may be liable for slanderous words spoken by a duly authorized agent in the scope of his duty. But liability in any case is dependent upon whether the agent was acting within the scope of his authority.” 2 Tex. Jur. 553, § 159.
Eor the sake of brevity in listing the cases supporting the text, we will note parenthetically the character of agent, his authority, and the act held to be within the scope of his authority, as follows: Wells-Fargo & Co. Express v. Sobel, 59 Tex. Civ. App. 62, 125 S. W. 925, error refused (clerk in express office, held to have acted within scope of authority in assaulting plaintiff because he had written, in connection with a claim of shortage, a letter accusing clerks of theft and one of being a shyster); Producers’ Refining Co. v. Frazier (Tex. Civ. App.) 283 S. W. 880 (an auditor charged with duty of checking salvage after a fire, held to have acted within scope of his authority in slandering plaintiff by accusation that he had burned oil plant to cover shortage); Houston Printing Co. v. Jones (Tex. Civ. App.) 282 S. W. 854 (managing editor of paper charged with duty of maintenance and advancement of principal’s office discipline held to have acted within scope of authority in libeling plaintiff in bulletin posted on board); Texas & Pacific Railway Co. v. Parker, 29 Tex. Civ. App. 264, 68 S. W. 831, error denied (station agent having cars and property of defendant in his charge to look after and protect from trespassers held to have acted within scope of authority in falsely imprisoning plaintiffs by locking in box car while asleep and calling officers to arrest them); American Free Land Mortgage Co. v. Brown (Tex. Civ. App.) 191 S. W. 856 (president of defendant company acted within scope of authority in conspiring with others to injure plaintiff’s business by circulating false and slanderous statements); S. W. T. & T. Co. v. Long (Tex. Civ. App.) 183 S. W. 421 (manager of telephone company, with power to discharge employees, held to have, acted within the scope of employment when in discharging an employee he slandered her); North Texas Gin Co. v. Thomas (Tex. Civ. App.) 277 S. W. 438 (manager with authority to represent principal in the operation and management of a gin, and in the purchase of cotton and cotton seed on local market in town, held acting within scope of employment in entering into an unlawful conspiracy in restraint of trade).
*178Numerous out-of-state authorities may be cited bolding the principal to liability for willful torts, of which may be mentioned Davenport v. Burke, 30 Idaho, 599, 167 P. 481 (fraud); Kirk v. Montana Transfer Co., 56 Mont. 292, 184 P. 987 (assault); Mansfield v. W. J. Burns I. D. Agency, 102 Kan. 687, 171 P. 625, L. R. A. 1917D, 571 (beating plaintiff); U. S. F. & G. Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A. L. R. 520 (coercion by threat to cancel policy); Wilson v. Singer Sewing Machine Co., 184 N. C. 40, 113 S. E. 508 (cursing plaintiff, throwing her property on floor and attempting to foreeably take a sewing machine because of nonpayments thereon); Waldron v. N. Y. Cent. Ry. Co., 106 Ohio St. 371, 140 N. E. 161 (accidently killing third person with gun used in business); Mitchell v. Finnell, 101 Cal. 614, 36 P. 123 (threatening unlawful imprisonment); Dunn v. Hartford, Etc., Horse Ry. Co., 43 Conn. 434 (agent received third person’s property from principal’s debtor and sold to pay debt); Field v. Kane, 99 Ill. App. 1 (floor walker followed customer suspected of theft into the street and foreeably compelled return); Strader’s Adm’rs v. Lexington Hydraulic & Mfg. Co., 146 Ky. 580, 142 S. W. 1073 (killing party in attempting to remove him peaceably from premises as a trespasser); Penn. Iron Works v. Vogt Machine Co., 139 Ky. 497, 96 S. W. 551, 29 Ky. Law Rep. 861, 8 L. R. A. (N. S.) 1023, 139 Am. St. Rep. 504 (office manager wrote libelous letters); Bank of Commerce v. Hoeber, 88 Mo. 37, 57 Am. Rep. 359 (secret preference to a creditor to effect compromise); Dupre v. Childs, 52 App. Div. 306, 65 N. Y. S. 179 (agent managing restaurant followed diner into street and caused his arrest).
The ruling principle in all of these cases is precisely the same as that discussed in I. & G. N. Ry. Co. v. Cooper, 88 Tex. 607, 32 S. W. 517; I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; I. & G. N. Ry. Co. v. Yarbrough (Tex. Civ. App.) 39 S. W. 1096; Magnolia Petroleum Co. v. Winkler (Tex. Civ. App.) 40 S.W.(2d) 831. To contend that the principal is as a matter of- law not liable for a false imprisonment and assault of an agent because there was no authority given by the principal to the agent to falsely imprison or assault is precisely on a parity with the proposition that the principal is not liable for the negligence of the agent because he had not given the agent authority to perform his work negligently.
The final and conclusive test in all cases without any distinction as to negligent torts and willful torts is whether or not the act or omission of the agent constituting the tort, although itself not authorized, and even if in violation of instructions, was an act done or omitted in pursuance of the principal’s business, and within that particular part of such business, if less than all, committed to the agent.
The filling station belonged to appellant. The oil and gas belonged to it, as well as the proceeds of the sale of oil and gas. The business of appellant was the selling of oil and gas. Lawson had charge of that business at the particular place. That fact implied his duty to protect and preserve the property.in his care and control. The act of Lawson in running oil or gas into appellant’s car was the act of the appellant. Had he negligently lighted a match and destroyed the car or injured appellee, it would hardly be contended that appellant would not be liable. If appellant’s liability in this case is any the less certain, it is not because of any difference in the rule or principle of liability, but because it is not so apparent that the act committed, of which 'complaint is made was an act done for the principal rather than to serve some motive or purpose of the agent, or to carry out a reguest of the officers of-the law, having no relation to appellant’s business. If it were admitted, or the undisputed evidence had shown that the acts complained of were done by Lawson to enforce payment for the oil and gas, we are of opinion that it would have been the duty of the court to instruct a verdict for appellee on the issue of liability. I. & G. N. Ry. Co. v. Cooper, supra; Magnolia Petroleum Co. v. Winkler, supra.
We think- the evidence was not undisputed, and that “the question of authority or not is one of fact to be determined by the jury like any other issue, and not a matter of law to be decided by the court.” G., H. & S. A. Ry. Co. v. Zantzinger, 93 Tex. 64, 53 S. W. 379, 381, 47 L. R. A. 282, 77 Am. St. Rep. 829.
What has just been said constitutes, we think, an almost sufficient answer to the motion of appellee. We cannot take as an established fact that Lawson was acting within the scope of his authority just because the jury so found and upon that premise hold that there was no error in refusing to admit the evidence offered by the appellant and refusing to submit issues requested presenting appellant’s theory of the ease. ’ Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517. The issues made by the evidence were such that, had the special issue been given and answered favorably to appellee, it is doubtful if the evidence would have been sufficient to support a finding that Lawson was acting within the scope of his authority conferred by appellant.
It is true that, if it were conceded or conclusively established that Lawson was acting within the scope of his authority, it would be immaterial that he was also, by his act, subserving some purpose of his own, or of a third party, but the appellant had the right to have any competent evidence introduced *179to establish that the agent was not acting for appellant, and, since it had a definite theory pleaded as to whom he was acting for and which was supported by some evidence, it had the right, we think, to have the jury pass upon same.
Both motions are accordingly overruled. '