dissenting. The petition alleges that there were about fifty .persons on a strike, who were- picketing a cotton-mill, one of whom was the petitioner, that he and the other persons were standing on a side-track of a railroad company where it crossed a public street over which it was necessary for a train to run when placing cars on the side-track of said railroad leading to the cotton-mill; that the plaintiff and other pickets refused to move at the request of Waits, and were thereby blocking said track; and that Waits, an agent of the company who was in charge of one of its trains, and whose duty it was to run the train over the track at a point where the plaintiff, a trespasser, was blocking the passage thereof. Waits, the agent, would be acting within the scope of his authority if he removed the trespasser from the track in order for the train of which he was in charge to pass over said tracks; and the railroad company would not be liable for the removal of the trespasser if the agent did not use more force than was necessary. On the other hand, if Waits, the agent, while the plaintiffs were engaged in the trespass, in attempting to prevent the trespass or cause the plaintiff to desist, injured the plaintiff *737by using more force than was necessary for tbe purpose, the company would be liable. Georgia Railroad & Banking Co. v. Wood, 94 Ga. 124, 126 (21 S. E. 288, 47 Am. St. R. 146). Therefore, if Waits went away and obtained the chief of police for the purpose of removing the trespasser from the track, and when the chief arrived at the scene of the trespass Waits then and there ordered the chief to shoot the plaintiff with a large and heavy gun loaded with a heavy substance, and the chief then and there in his presence shot the plaintiff, a trespasser, and if this was an unnecessary use of forc'e for the purpose of removing the trespasser, the railroad company would be liable upon the ground that the act of the chief under the circumstances was to be regarded as the act of the servant in charge, since he was present and directing the act. The act of the chief of police was substantially the act of Waits, for he was immediately present, standing by, and directed the chief to shoot; it was as much his act as if done by his own hand. 3' Michigan Law Eeview, 207. “The agent or servant has ordinarily, as has been seen, no implied authority to delegate the service to a stranger; that is, to employ substitutes, or to employ strangers, on the principal’s account, as assistants to aid him in performing his service. Eor the negligence of such strangers, therefore, the principal or master can not be held upon the ground that they were his servants or agents. In a number of cases, however, the principal or master has been held liable, either upon the ground that permitting such strangers to act was an act of negligence on the part of the servant in charge, or upon the ground that the act of such stranger was, under the circumstances, to be regarded as the act of the servant in charge, since he was personally present, directing and controlling the act.” Mechera on Agency, (3d ed.), 339, § 513. If Waits, the servant, was so clearly using the chief of police as a mere instrument — a longer arm which the servant wields and controls, then the act of the chief of police is to be regarded as the act of Waits, and, if negligent, as the negligence of Waits, it would make the master liable. 3 Michigan Law Eeview, 216. “That the master, in directing the act to be done, has, from its nature and the circumstances under which it is to be done, impliedly authorized the servant to do it by means of the usual or proper tools or agencies, and that among those proper tools or agencies may be the casual act of a third person, not as a mere mechanical *738aid or longer arm as above suggested, nor yet in such a way as to make that third person, in any contractual sense at least; the master’s servant, . . but merely as a permissible tool for whose defective working under the hand of the servant the master has impliedly assumed responsibility as he has for the working of the inanimate tools or agencies that may be employed. Under such a rule, if in the progress of the work it became necessary to use a crowbar, the servant might use one; and if it became desirable or necessary to use the casual and incidental act of a third person, the servant might do that. If in such a case the servant negligently selected an improper crowbar or carelessly used a proper one, the master would be liable. So if in such a- case he negligently selected an improper person or negligently used a proper one, the master would be liable.” 3 Michigan Law Review, 317.
An examination of the petition shows that the only act ascribed 'directly to either of the defendants is that Waits, the agent in charge of the train invoked the aid of Sturdivant, chief of police of the City of Atlanta, and directed him to shoot the plaintiff in order to remove the plaintiff, who was one of about fifty persons who were blocking a railroad side-track where it crossed a public street in the city. This act is significant only as a means of imputing the conduct of the chief of police to the defendant in this suit. The agent of a railroad company, acting within the scope of his authority, has a right forcefully to eject a trespasser who is blocking the railroad-track and preventing the delivery of cars' at their destination. If in ejecting such a trespasser more violence is used than is necessary for the purpose, the company and its agents are liable for damages resulting from such excess of violence. In Jardine v. Cornell, 50 N. J. L. 486, it was said: “A police officer who, in response to the invitation of the regular agent of the company, assists in ejecting a passenger becomes a special agent of the company for that purpose, and is subject to the same rule in regard to excessive violence in executing the regulation of the company.” See Bayley v. Manchester &c. Ry. Co., 7 Law Reports, Court of Common Pleas (35 Victoria) 415. If Sturdivant was acting purely in his capacity as a police officer, the railway company is not responsible for his acts. Only when the railway company through its authorized agent has employed or directed such police officer to act for it, does it become responsible. *739If the chief of police acted, in his alleged attack upon the plaintiff, solely in his capacity as an officer, and not by and under the direction of the agent in charge of the train, the defendant is not responsible. I think the petition discloses, either expressly of by necessary implication, that the chief of police in his assault upon the plaintiff did not represent the public, but the defendant. The petition does not show any attempt or intention to arrest the plaintiff for a breach of the peace, or for any other violation of law, but only to force his removal from the railroad-track. Foster v. Grand Rapids Ry. Co., 140 Mich. 689, 693. The petition shows that the police officer was directed by the agent of the railroad company, acting within the scope of his authority then and there, to shoot the plaintiff in order to protect the property of the railroad company. In other words, where the police officer represents the railroad, and not the public, such railroad may become liable for his acts; and in the instant case I think the petition alleges that the act done by the policeman was in protection of the railroad’s property, and that under the allegations of the petition the policeman was representing the railroad rather than the public. Andrezeg Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421. If in ejecting the trespasser the policeman used more force than was necessary for that purpose, the company and its agents are liable in damages. And if the act of shooting was done by 'the servant to advance the interest of his master, because the servant is an officer of the State or municipality, the master is liable. Bestatement of the Law on Agency, 553, § 245. The petition in this case differs from that in Bates v. Southern Ry. Co., 52 Ga. App. 576 (183 S. E. 248), in that by amendment the plaintiff alleged that he and the other persons were standing on the railroad-track and blocking the entrance' of the train into the cotton-mill ground, and in view of this amendment; it seems to me that Waits, the agent in charge of the train, was acting within the scope of his authority when he undertook to remove the plaintiff and the other persons from the railroad-track in order that he might properly operate the train. The plaintiff alleges that he and others “were only standing peacefully assembled, as they had a right to do; . . that the said Sturdivant disembarked from his automobile, and acting under instructions and the commands of the said Waits, without any warning of any kind *740whatsoever, did wilfully and wantonly shoot your petitioner squarely in the face, eyes, and mouth, as aforesaid,” thereby permanently injuring and damaging him, and “that after the said action as aforesaid your petitioner, fearing further violence, together with the other members assembled as .aforesaid, moved and were moved and carried away from said point, your petitioner being taken .home.” By necesary implication the petition alleged that the plaintiff was not taken away from the scene to the police station as a disorderly person, and that there was no arrest. I can not say as a matter of law that the allegations of the petition show that the policeman was acting solely for the public, and not solely for the company in order to protect its property. I think the case should have been submitted to a jury to determine whether or not the policeman was directed by the agent of the railway company, acting within the scope of his authority, to shoot the plaintiff in order to protect the property of the company, the servant being then and there present, and whether or not the police officer was acting for the company in shooting as directed, or was acting as an officer of the municipality; and if it should be determined by the jury that the police officer was so acting for the company, the company would be liable if in removing the trespasser the officer employed excessive force. I think the court erred in sustaining the demurrer.