There is, at this time, but little conflict of judicial opinion in respect to the general rule by which the liability of a master for the misconduct of his servant, resulting in injury to third persons, is to be tested and ascertained. In Higgins v. The Watervliet Turnpike Company (46 N. Y., 23) this subject was considered by this court, and the rule was declared to be, that the master was responsible civiliter for the wrongful act of the servant causing injury to a third person, whether the act was one of negligence or positive misfeasance, provided the servant was at the time acting for the master, and within the scope of the business intrusted to him. The master is liable only for the authorized acts of the servant, and the root of his liability for the servant’s acts_js his consent, express or implied, thereto. When the master is to be considered as Raving authorized the wrongful act of the servant, so as to make him liable for his misconduct, is the point of difficulty. Where authority is conferred to act for another, without special limitation, it carries with it, by implication, authority to do all things necessary to its execution ; and when it involves the exercise of the discretion of the servant, or the use of" force towards or against another, the use of such discretion or force is a part of the thing authorized, and when exercised becomes, as to third persons, the discretion and act of the master, and this, although the servant departed from the private instrue*134tions of the master, provided he was engaged at the time in doing his master’s business, and was acting within the general scope of his employment. It is not the test of the master’s liability for the wrongful act of the servant, from which injury to a third person has resulted, that he expressly authorized the particular act and conduct which occasioned it. In most cases where the master has been held liable for the negligent or tortious act of the servant, the servant acted not only without express authority to do the wrong, but in violation of his duty to the master.
/ It is, in /general, 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 wa| engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to arid author-x ized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or itiflicted an unnecessary injury in executing his master’s orders. 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 responsibly when the servant, through lack of judgment or discretiojn,’ or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injUI'.y upon another. But it is said that the blaster is not responsible for the willful act of the servant. / This is the language of some of the cases, and it becomes necessary to ascertain its meaning when used in defining the master’s '^responsibility.
The case of McMamus v. Crickett (1 East, 106) turned upon the form of the action and the distinction between trespass and case, but Lord Kenton, in pronoucing the judgment of the court, said: “ Where a servant quits sight of the object for which he was employed, and, without having in *135view his master’s orders, pursues that which his own malice suggests, his master will not be liable for. such acts.” This language was cited with approval in Wright v. Wilcox (19 Wend., 343), and the master was held not to be responsible where the servant, in driving his master’s wagon along the highway, willfully whipped up his horses while the plaintiff’s son, a young lad, was standing between the front and back wheels, attempting, with the implied permission of the servant, to get into the wagon, in consequence of which the boy was thrown down, run over and injured. The servant was cautioned by a bystander that if he did not stop he would kill the boy. The court, in the opinion delivered, assumed that the evidence showed that the servant whipped up the horses with a willful design to throw the boy off. The act of -the servant was imminently dangerous, and it might reasonably be inferred from the evidence that he designed the injury which resulted from it. “ The law,” said Cowen, J., “ holds such a willful act a departure from the master’s business.” So in Vanderbilt v. The Richmond Turnpike Company (2 Comst., 479), the master of the defendant’s boat intentionally ran into the boat of the plaintiff, and the court held that this was a willful trespass of the master for which the defendant was not liable. In Lyons v. Martin (8 Ad. & El., 512) it was held that where a servant merely authorized to distrain cattle damage-feasant, drives . cattle from the highway into his master’s close, and there distrains them, the master is not liable. In Mali v. Lord (39 N. Y., 381) the act complained of was an illegal imprisonment of the plaintiff by the servant of the defendant, and the court held that the authority to do the act could not be implied from the general employment of the servant. The imprisonment, assuming that the suspicion upon which it was made was well founded, was illegal. The master could not lawfully have detained the defendant if he had been present, and the court were of the opinion that the servant could not be said to be engaged in his master’s business when he assumed to do what the master could not have done himself. *136(See, also, Bolingbroke v. The Local Board, etc., L. R., 9 C. P., 575.) It is quite useless to attempt to reconcile all the cases. The discrepancy between them arises not so much from a difference of opinion as to the rule of law on the subject as from its application to the facts of a given case.
It seems to be clear enough from the cases in this State that the act of the servant causing actionable injury to a third person does not subject the master to civil responsibility in all cases where it appears that the servant was at the time in the use of his master’s property, or because the act, in some general sense, was done while he was doing his master’s business, irrespective of the real nature and motive of the transaction. On the other hand, the master is not exempt from responsibility in all cases on showing that the servant, without express authority, designed to do the act or the injury ^/complained of. If he is authorized to use force against* another when necessary in executing his master’s orders, the master commits it to him to decide what degree of force he | shall use; and if, through misjudgment or violence of temI per, he goes beyond the necessity of the occasion, and gives I a right of action to another, he cannot, as to third persons, \ be said to have been acting without the line Of his duty, or tto have departed from his master’s business. If, however, the servant, under guise and cover of executing his master’s orders, and exercising the authority conferred upon him, willfully and designedly, for the purpose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, then the master is not liable. The relation ^ of master and servant, as to that transaction, does not exist -^between them. It is a willful and wanton wrong and trespass, for which the master cannot be held responsible. And [when it is said that the master is not responsible for the willSful wrong of the servant, the language is to be understood as (referring to an act of positive and designed injury, not done with a view to the master’s service, or for the purpose of executing his orders. In this view, the j udge at the trial correctly refused to qualify his charge, or to charge that it was *137sufficient to exempt the defendant from liability that the act of the brakeman in putting the plaintiff off the car was willful. He had already charged that if the brakeman acted “ willfully and maliciously towards the plaintiff, outside of and in excess of his duty,” in putting him off of the car, the defendant was not liable. If the counsel intended to claim that the defendant was exempt from responsibility if the brakeman acted willfully, although without malice, the point was not well taken. That the brakeman designed to put the plaintiff off the car was not disputed, and this was consistent with the authority and duty intrusted to him. But a willful act which will exempt a master from liability for the tort of his servant, must be done outside of his duty and his master’s business. The charge was, therefore, strictly correct, and the exception was not well taken.
Neither was the defendant entitled to have the court rule, as matter of law, that, upon the circumstances as shown by the evidence on the part of the plaintiff, the defendant was not responsible. It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the baggageman. The plaintiff had no right to be there. He was not a passenger or servant, and had no express or implied permission to be upon the car. The brakeman, in kicking the boy from the platform, acted violently and unreasonably, and fo do this while the car was in motion, and when the space between it and the wood-pile was so small, was dangerous in the extreme. But the court could not say from the evidence that the brakeman was acting outside of and without regard to his employment, or designed to do the injury which resulted, or that the act was willful within the rule we have stated. If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master’s business, and was acting maliciously and willfully, it must, ordinarily, be left to the *138jury to determine this issue upon a consideration of all the facts and circumstances proved. (See Jackson v. The Second Ave. R. R. Co., 47 N. Y., 274.) There may be cases where this rule does not apply, and where the court would be justified in taking the case from the jury; but where different inferences may be drawn from the facts proved, and when, in one view, they may be consistent with the liability of the master, the case must be left to the jury. The fact that the plaintiff was a trespasser on the cars is not a defence. The \lad did not forfeit his life, or subject himself to the loss of r his limbs, because he was wrongfully on the car. The defendant owed him no duty of care by reason of any special relai tion assumed or existing between the company and him, but : he was entitled to be protected against unnecessary injury by I ^ the defendant or its servant’s in exercising the right of removj ing him, and especially from the unnecessary and unjustifij able act of the brakeman by which his life was put in peril, 1 and which resulted in his losing his limb. (Sanford v. Eighth Ave. R. R. Co., 23 N. Y., 343; Lovett v. Salem, etc., R. R. Co., 9 Allen, 557; Holmes v. Wakefield, 12 id., 580.)
Bo error of law was committed on the trial, and the judgment of the G-eijeral Term should be affirmed, with costs.
All concur.
Judgment affirmed.