This is an action to recover damages for personal injuries. The facts of this case, shortly stated, are about these: The plaintiff, about 8 o’clock of the night he received the injuries which he made the basis of this action, went into the waiting room of the defendant’s station at Altamont, where he lay down on a bench and went to sleep. About midnight, he suddenly awoke, finding his legs and feet on fire. After the fire had.been extinguished, one Keating, who was the defendant’s station agent and night operator in charge of the station, was standing near the plaintiff and on plaintiff inquiring, “Who done it-1?” Keating said, “he did, to scare me (plaintiff) out of the depot,” and, “that the superintendent told him not to allow any bums around there.” The undisputed evidence was further to the effect that while the plaintiff was asleep, Keating took a bottle of benzine, and poured the contents on the bench on which the plaintiff was sleeping. As to whether Keating set fire to the oil or whether it was done by another, the evidence was conflicting.
Keating testified that he intended to set fire to the benzine, but that someone else did it. He stated that if the benzine got on the plaintiff’s legs (about which there is no dispute) “it must have run on his legs.” He further testified that his purpose in pouring the benzine on the bench was to have some fun with the plaintiff.
The plaintiff was badly injured. He was disabled for several weeks and suffered much pain in consequence of the injuries he received. There was a trial, which resulted in judgment for the plaintiff and defendant has appealed.
And in further giving the plaintiff’s third, which declared: ’‘that although they may believe from the evidence that the said Keating did not set fire to said benzine, yet if they further believe from the evidence that he poured the same on plaintiff for the purpose of having someone else set it on fire, and that said person did set fire to the same,” to find for plaintiff, etc.
If the defendant’s agent, while in charge of said station and in the performance of his duties as such station agent, poured benzine upon the legs and feet of the plaintiff, or poured the same on the bench on which plaintiff was sleeping, whereby the clothing on his legs and feet became saturated therewith and the plaintiff’s legs and feet were burned in consequence thereof, it is immaterial whether defendant’s station agent set fire to the benzine himself, or whether it was done by another, for, in either case, the defendant is liable for the injuries resulting to the plaintiff by the wrongful act of its agent.
master and sewmás:t¿fscope°of employment. The rule now well settled in this state is that the mere - fact that the tortious act is committed by the servant, while he is actually employed in the performance of the service he has been employed to render, can not make the master liable. It must not only be done while so
Railroads: ant: station *?Sm>in3uiy to In Wood on Master and Servant, section 307,' it is stated that: “By putting the servant in his place he becomes responsible for all his acts within the lme of his employment, even though they are willful and directly antagonistical to his orders. The simplest test is whether they were acts within the scope of his employment, not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof and were such as may be fairly said to have been authorized by him. By authorized is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his orders.”
In Haehl v. Railroad, 119 Mo. loc. cit. 339, it is said: “The principle of respondeat superior applies only where what is complained of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is then responsible because the thing complained of, although the agency of another, was done by himself; and it matters not whether the injury with which it is sought to charge
It was the manner which was adopted by the defendant’s station agent in performing a duty of his employment which occasioned the plaintiff’s injury. The instructions told the jury, in effect, that if the defendant’s station agent, in the performance of a duty of his employment, committed the wrong on plaintiff, the defendant was liable for same, and this, it seems to us, accords with the rule declared by the authorities to' which we have referred.
Among the well established rules of consequential damages is that which declares that “the innocent or the culpable act of a third person may be the immediate cause of the injury and still an earlier 'wrongful act may have contributed so effectually to it as to be regarded as the efficient, or at least the concurrent and responsible cause.” And where the wrongful act of one party affords only the occasion for the illegal or wrongful act of another, it is too remote as to the first wrongdoer, yet this rule is always subject to the qualification “unless the injury thus arising was such as was likely, according to the general experience, to happen from such conduct; or where the misconduct offering such opportunity consists in the omission of some precaution it was the defendant’s duty to take against such loss as has occurred.”- The following are some of the cases which illustrate the application of the principle embodied in the foregoing rules. Morrison v. Railroad, 27 Mo. App. 418; Boggs v. Railroad, 18 Mo. App. 274; Nagel v. Railroad, 75 Mo. 661.
No wrongdoer ought to be allowed to apportion or qualify his wrong, and as a wrong hjas actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle a party to exemption, he must show not only 'that the same loss might have happened, but that it must have happened, if the act complained of had not been done. Davis v. Garnett, 5 Bing. 716.
But if it be assumed that the defendant’s agent
trial practice: taken together, The objection of the defendant to the plaintiff’s said third instruction that it is complete within itself and does not therein require the jury to consider any fact stated in the other instructions is not well taken. All the instructions given in any case should be taken m their entirety and when so taken they should be complete and harmonious declarations of the law applicable to the facts the evidence tends to prove. When the said instruction is considered in connection with the others given in the case, it will be seen that the same is not justly subject to the defendant’s criticism. O’Connell v. Railroad, 106 Mo. 482, and cases therein referred to.
The defendant cites and relies greatly upon a. Texas casq (Railroad v. Cooper, 32 S. W. Rep. 517), but a reference to that ease will show that the ruling there made is inapplicable here, for there the plaintiff was in the tender of the locomotive, with the consent of the engineer, and while so being, the fireman, with the consent of the engineer, introduced the end of the nozzle or hose connected with the boiler into the plaintiff’s hip pocket and the engineer, by means of the appliances of the machinery, turned upon the plaintiff hot water or steam, which scalded and injured the plaintiff. It was held the railway company was not liable, since, in the performance of the act by which plaintiff was injured, the engineer and fireman were not acting within the scope of their authority and in the discharge of a duty in furtherance of the business of their employer. But here the defendant’s station
railroads: státiofíagen'* of instruction. But notwithstanding what has just been said in respect to the Texas case, the defendant, by the giving by the trial court, of its. second instruction, had the full benefit of the rule there declared and even more than that. This instruction declared to the jury that if they believed from the evidence that the defendant’s operator, at the time in question, set fire to the benzine referred to by the evidence, for the purpose of scaring the plaintiff, or having some sport with him, then the defendant would not be liable, and the verdict should be for the defendant. As will be perceived, it submitted to the jury the issue of whether the defendant’s station agent himself set fire to the benzine, so that, after all, this issue was submitted to the consideration of the jury, and the objection that it was not submitted, or, if so, that there was no evidence to justify it, is eliminated from the controversy. This instruction, it seems to us, was much more favorable to defendant than it should have been. It might have well been that Keating, in the performance of the duty which was required of him in keeping a certain class of persons away from the defendant’s station, had concluded to
evidence: decgest ae f cumu i a - The declarations made to Steele and Hamilton the next day after the trespass were, we think, too remote to be considered as part of the res gestae, and should not have been admitted. They were admissible for the purpose of discrediting defendant’s station agent, but it does not clearly appear on what ground or for what purpose they were admitted, or upon what ground they were objected to. But, however this may be, such declarations were only cumulative and afford no ground for disturbing the judgment.
_. admissions:. res gestae. Nor do we think the question of proximate cause arises in the case. The admissions of the agent as to who perpetrated the wrong and for what purpose, were made contemporaneously, or nearly so, with the principal act, so as to form part of the res gestae, within the rule declared in Earriman v. Stowe, 57 Mo. 93. In any view of the case that may be taken, we think that the plaintiff is entitled to recover compensatory damages of the defendant for the injury the plaintiff received in consequence of the wanton and malicious act of defendant’s station agent.
The judgment will be affirmed.