dissenting, in part: I dissent from so much of the opinion of Mr. Justice Brown as decides that any cause of action is shown, either in the pleadings or proof, against defendant. I concur with .so much of the opinion as decides that, in any point of view, the defendant could be liable only for actual damages. I have given to the case my most careful and anxious c.onsideration and investigation, because of the divergent views of the Judges and the far-reaching effect of the holding upon the liabilities of all of our citizens in their business and industrial life. The plaintiff, by his allegation and proof, has narrowed the question to its simplest possible form. He has carefully excluded any suggestion of negligence, resting his action upon a willful, wanton tort. In Loubz v. Hafner, 12 N. C., 185, Taylor, Q. J., said: “For beating a drum on the highway, where a wagon and team are passing, by which the horse takes fright, runs away and damages the wagon, the action is properly brought in trespass.” *86So it is beld that willfully discharging a gun, whereby a sick person is frightened, is an indictable- assault. Com. v. Wing, 9 Pick., 1, citing Cole v. Fisher, 11 Mass., 137. The evidence fully sustains .the allegation. The blowing of the whistle, helloing and shouting of the hands was wanton and willful, without any purpose to or having any connection with the discharge of any duty to the plaintiff or the public. One witness swears that the engineer said he did it “to see the horses jump about.” Ilis Honor correctly interpreted the complaint, and, therefore, declined to submit an issue in regard to contributory negligence, because it did not arise upon the pleadings. There can be no contributory negligence when the defendant has been guilty of no negligence to which plaintiff’s negligence could contribute. “An assault and battery is not negligence.” Beach Oont. Neg., sec. 65. The cause of action is the unlawful, wrongful act, resulting in injury — the frightening of the horse; the damage which proximately flowed from the wrong measures the extent of the recovery. The wrongdoer is liable for all damages which proximately flowed from the act. Ramsbottom v. Railroad, 138 N. C., 38; Johnson v. Railroad, 140 N. C., 574; Hale on Damages, 36-38. Hence the plaintiff’s cause of action is the wrongful act of the engineer and other servants, and he recovers for the damage sustained by him in his efforts to control the horses after being frightened, because such damage proximately flowed from the wrongful act. -We then have this case: Defendant, for the p-urpose of hauling logs to its mill, and such other purposes as its business required, owned and operated a “tramroad,” located some twenty feet from and running parallel with the public highway. On 20 May, 1903, the plaintiff was passing along the highway, at the point named, not a p-ublic crossing, when he met the engine operated by the engineer and several hands, firemen, etc. The highway and tramroad ran parallel some three hundred yards; the engine was that distance from plaintiff when he first saw *87it. ILis horse and mule were gentle and not afraid of the usual noise of trains; had been around them and were not frightened. When about seventy-five yards from plaintiff, the engineer began blowing the whistle and continued for about seventy-five yards after passing him, giving short, quiet and loud shrieks and blasts. The hands on the train waved their hats and hands toward plaintiff and “hollowed” very loud. This conduct was, on the part of the engineer and other servants, willful and wanton and “for the purpose of frightening the horses of the plaintiff,” and he was “injured thereby.” This is the case as stated by the plaintiff and found by the jury. Is the defendant liable for the injury thus sustained by plaintiff, and if so, is it liable for punitive or vindictive damages ? The engineer and the other persons engaged in the conduct described are criminally liable, and in a civil action may be held to compensatory and vindictive damages. The natural indignation aroused by a recital of their conduct, in the light of the gross, wanton wrong done plaintiff, must not be permitted to disturb our judgment in inquiring into the liability of the defendant. There is no suggestion, otherwise than is shown by their conduct on this occasion, that the servants employed by defendant to conduct its legitimate business were unfit persons. There is no negligence alleged or shown in regard to their selection for the business for which they were employed; nor is there any suggestion that the tramroad was negligently placed, so that, in the proper and careful operation of the engine, the horses of the plaintiff or other persons would have been frightened. The plaintiff says: “The mule and horse were both gentle and not afraid of the usual noises of the train.” This’case is clearly distinguished from Daniel v. Railroad, 117 N. C., 592. There the liability of the defendant was based upon the fact that, at the time of the shooting by the station agent, plaintiff’s intestate was a passenger. The principle upon which that ease is decided is uniformly recognized and en*88forced. A full note, with the citation of many decided cases, may be found in 4 L. R. A., N. S., 485, where Daniel’s case is reported. I also concur in the principle upon which this Court sustained a recovery in Pierce v. Railroad, 124 N. C., 83, and Cook v. Railroad, 128 N. C., 333; Hayes v. Railroad, 141 N. C., 95. All of these and similar cases rest upon the fact that, in ejecting persons wrongfully on the cars, the servant, in the discharge of his duty, used excessive force. It was held in those cases that the fact that defendant’s servant acted wantonly and willfully was immaterial. I have no purpose to call into question the decision in either of these cases. There are but two cases in our reports which in the slightest degree militate against the conclusion reached by me in this case. I will refer to them later.
The principle involved in the case differs in no respect from one in which a farmer, owning a threshing machine attached to a portable engine, operated by his servants, by the side of a public highway, finds himself sued for damages because his servant, for some purpose of his own, either wantonly or maliciously, blows the whistle or makes some other noise of which the machine is capable, but not necessary in its operation, whereby some person passing along the highway is injured. Nor can I see any difference in principle between this case and one in which a person owning and operating a steam cotton gin near the roadside, whose servant, for some purpose of his own, and not to manage or control the movement of the gin, blows the whistle and frightens a horse. In neither case is there any negligence. Formerly it was held that a master was not liable for the tort of his servant, although committed in the scope of his employment, when the tortious act was wanton or willful. Campbell v. Staiert, 6 N. C., 389; Harris v. Mabry, 23 N. C., 240. These and many other cases decided in other jurisdictions follow the decision in McManus v. Crickett, 1 East., 105; Wright v. Wilcox, 19 Wend., 343; Vanderbilt v. Richmond Turnpike Co., 2 N. Y., *89479. This view has been abandoned by the courts, both in England and in this country, and it is now generally held that the test of liability is not whether the wrong is willful, wanton or malicious, but whether it is done in the scope of the employment. This Court, without expressly overruling the earlier cases, has adopted the-modern view. It is said in Pollock on Torts (7th Ed.), 91: “A master may be liable for willful and deliberate wrongs committed by the servant, provided they be done on the master’s account and for his purposes ; and this, no less than in other cases, although the servant’s conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the ‘willful and malicious’ wrong of his servant. If ‘malicious’ means committed exclusively for the servant’s private end, or ‘malice’ means private spite, this is a correct statement; otherwise it is contrary to modern authority.”
It is uniformly held at this time that the test of liability of the master for torts of his servant is whether, at the time he did the act complained of, he was acting within the scope of his employment. Various theories are advanced by judicial writers and judges as the basis of the doctrine, but all of them concede that none are entirely satisfactory. If wé adopt the maxim respondeat superior as the basis, we find ourselves but little advanced in the solution of many cases. It is very easy to say, let the principal be responsible for the acts of his agent. We are at once confronted with the question, What acts ? The answer is, those which he has employed him to do. Mr. Jag-gard finds the same difficulty when he invokes the maxim Qui facit per aliwn facit per se — a maxim which, he says, “in the law of torts, has created much confusion.” 1 Torts, 38. In many of the cases the liability is based upon the theory that the act which the servant does is commanded by the master, and he is liable for the manner in which the command is executed. This is illustrated in Cooh's case, supra. The master imposes the duty upon his servant to eject persons *90wrongfully on tbe train. Tbis tbe master bas a right to do, and if be uses excessive force, or acts from anger, be is liable. When be commands bis servant to act, tbe act of tbe servant is bis act, with all of tbe legal consequences growing out of the manner of doing it.
Mr. Jaggard says: “If a master assists a servant in an assault, they are actual joint tort feasors. If be commands bis servant to assault, they are constructively joint tort feasors. This is also true when be directs bis servant to do something which necessarily or naturally involves an assault. But when a servant, contrary to orders and without tbe knowledge of tbe master, assaults, for example, tbe master’s customer or tbe master’s passenger, tbe master is sometimes held responsible, not because tbe tort is really bis, but because of tbe relationship be bears both to tbe servant and to tbe injured man. If he sustain no- relationship to the complainant which imposes on him a duly which his servant violates, there is no responsibility.Torts, 39.
As is said by Mr. Justice Solee, in Sawyer v. Railroad, 141 N. C., 1, quoting from Wood on Master and Servant, “Tbe question usually presented is whether, as a matter of fact or law, tbe injury was received under such circumstances that, under tbe employment, tbe master can be sáid to have authorized tbe act; for if be did not, either in fact or law, be cannot be made chargeable with its consequences, because, not having been done under authority from him, express or implied, it can in no sense be said to be bis act, and tbe maxim previously referred to does not apply. Tbe test of liability in all cases depends upon tbe question whether tbe injury was committed by tbe authority of tbe master, expressly conferred or fairly implied from live nature of the employment and the duties incident to it."
Justice Walicer, in Daniels v. Railroad, 136 N. C., 517, puts tbe principle clearly: “Tbe act of tbe servant must be something done in attempting to do what tbe master has em*91ployed the servant to do.” If the liability grow out of the idea that the master has commanded his servant to do the thing of which complaint is made, or has commanded him to do something which involves — that is, renders necessary to its accomplishment — the thing complained of, how is the defendant liable for the servant’s act in this case? The servants were employed to operate the engine over the tramroad. This was not in itself wrongful or dangerous, unless negligently done. While it is not alleged or proven, we know from observation and experience that engines have attached to them an appliance by the use of which the steam is made to escape in a way to make a loud noise. We know, also, that this appliance is no part of the motive power of the engine; it does not contribute to or regulate its movement, but is intended and used only to give notice of the starting, approaching or stopping of the train, for the various purposes commonly understood. For these purposes it may fairly be supposed the master commands the engineer to use the appliance known as the whistle, and for the manner in which this command is executed the master is liable. We know equally well, and the plaintiff evidently knew, that it was no part of the duty or business of the engineer to blow the whistle, or of the hands to wave their hats and holler to persons passing along the highway, except at certain times and places and for the usual purposes. There was, therefore, no command, either actual or constructive, to do so. Hence the plaintiff truthfully alleged that they did so, not for the purpose of operating the train, but “for the purpose of frightening his horse.” Unless, therefore, the master be liable upon some other ground than that of a command or authority to do the act, it cannot be so at all. If he did not command the act, neither the maxim respondeat superior nor qui facii, etc., applies. It is impossible, upon this theory, to conceive how the master can be liable for an act which he neither actually nor constructively commanded or authorized to be done. It no more com-*92jnanded tbe act of which plaintiff complains than the farmer who sends his wagon and mules to town by his servant commands the servant to strike a person by whom he is passing. It is inconceivable how one can be said to do, by another, an act which he neither commands nor authorizes another to do.
This brings us to inquire whether the act of the servants was in the scope of their employment. There was no duty resting on the master to sound the whistle or wave hats at the place described. No such duty was either imposed upon or delegated to the servants, and any suggestion that the servants were acting for the master or in the discharge of any duty resting upon it is expressly negatived by the fact that they did it for a purpose of their own — that is, to frighten the plaintiff’s horses. All of the authorities concur in the statement that the master is liable for the tort of his servant when committed in the scope of his employment, and is not liable when the act is not within the scope of such employment, or, as said by laggard, “is the independent tort of the servant.” Torts, 276.
It will be observed that Sir Frederick Pollock, probably the most accurate writer on the subject, is careful to say that, while the master is liable for even willful and deliberate wrongs committed by the servant, “provided they be done on the master’s account and for his purposes, sometimes it is said that the master is not liable for willful and malicious wrong of his servant. If 'malicious’ means committed exclusively for the servant’s private ends, or 'malice’ means private spite, this is a correct statement.” The law is well stated and frequently formulated as laid down in Smith Master and Servant, 151; 2 Foundations Legal Liability, 410.
llarrelson, J., in Goodloe v. Railroad, 107 Ala., 154 (54 Am. St. Rep., 67), says: “What is meant by the words 'while acting within the range of the authority of the employment of the servant’ is made the ground for contention in each case. *93" * It is said, on tbe point under consideration, that the rule of the responsibility of the master for -the acts of his servant- does not apply simply from the circumstance that, at the time when the injury is inflicted, the person inflicting it was in the employment of another; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it — that is, it must be an act which - is fairly incident to the employment.”
In Railway v. Baum, 26 Ind., 70, it is said: '“It is not to be understood, however, that the master is never liable for the willful and malicious acts of the servant unless he has directed those specific acts to be done. The rule is not so broad as that. If the act of the servant complained of was necessary to be done to accomplish the purpose of the servant’s employment — if it was essential as a means to attain the end directed by the master and was intended for that purpose— then it was implied in the employment, and the master is liable, though the servant may have executed it willfully and maliciously. Rut when it is unnecessary to the performance of the master’s service, and not really intended for that purpose, but is committed by the servant merely to gratify his oiun malice, though under pretense of executing his employment, it is not done to serve the master, and is not, in fact, within the scope of the employment, and the master is, therefore, not liable. It will not do to say that he shall answer in damages because, by employing the servant, he gives him an opportunity to maltreat those with whom he comes in contact in discharging his duties.”
The disastrous results of adopting the reasoning repudiated in the opinion are apparent. The difficulty experienced by the courts in applying the term “scope of employment,” or, as is sometimes said, “course of employment,” is illustrated in a large number of cases.
*94In a well-considered case tbe Court of Errors of New Jersey, discussing tbe changes made in tbe original rule, says: “Tbe rule bas been gradually extended until it may be said that tbe liability of tbe master now extends to every case when tbe act of tbe servant is done with a view to tbe furtherance and discharge of bis master’s business and within tbe scope and limits of bis employment. Beyond tbe scope of bis employment tbe servant is as much a stranger to tbe master as any third person, and bis act in that case cannot be regarded as tbe act of tbe master. Tbe rule as it is now established by tbe later judicial .declarations should be strictly held within its defined limits. It is a rule capable of great abuse and much hardship, and tbe courts should guard against its extension or misapplication.” Holler v. Ross, 68 N. J. L., 324.
Lord Holt, in Middleton v. Fowler, 1 Salk (10 Wm. III.), said: “No master is chargeable with tbe act of bis servant but when be acts in execution of tbe authority given by bis master.”
In McManus v. Crickett, supra, Kenyon, C. J., said: “Now, when a servant quits sight of tbe object for which be is employed, and, without having in view bis master’s orders, pursues that which bis own malice suggests, be no longer acts in pursuance of the authority given him, and bis master will not be answerable for such acts.” It is said by tbe Reporter “that this cause was very much discussed at tbe bar, and tbe Court took time to consider of their judgment.” It is said “tbe modern law largely bas its roots” in the words of Lord Kenyon.
In Craft v. Allison, 6 E. C. L., 528 (4 Barn. & Ald., 590), it is said: “If a servant driving a carriage, in order to effect some purpose of bis own, wantonly strikes tbe horses of another person and produces tbe accident, tbe master will not be liable. But if, in order to perform bis master’s orders, be strikes, but injudiciously and in order to extricate himself *95from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment.”
Greswell, J., in Mitchell v. Crasweller, 13 C. B., 76 (E. C. L., 257), said: “No doubt, if a servant, in executing the orders, express or implied, of his master, does it in a negligent, improper and roundabout manner, the master may be liable. But here the man was doing something which he knew to be contrary to his duty and a violation of the trust reposed in him. I think that it would be a hardship updn the employers to hold them to be responsible under such circumstances.” The case of Limpus v. Lon. Omnibus Co., L. J., 1863 (N. S., 32, 35), is regarded as the controlling authority on the subject. All of the Judges wrote opinions. Williams, J., said: “If a master employs a servant to drive and manage a carriage, the master is, in my opinion, answerable for any misconduct of the servant in driving or managing it which can fairly be considered to have resulted from the performance of the functions entrusted to him, and especially if he was acting for his master’s benefit and not for any purpose of furthering his own interest, or for'any motive of his own caprice or inclination.”
In Poulton v. Railway Co., L. R., 1866 (2 Q. B. D., 534), the English cases were reviewed, Blackburn, J., saying: “Then comes the question we have to determine, Can there be said to be any evidence from which it may be inferred that the railway company authorized the station master to do an act which, it appears on every view of the facts, he would be utterly unauthorized to do ? We think not. We do not think it is within the scope of his authority, in what he was authorized to do, to bind the company. It was an act out of the scope of his authority, and for which the company would be no more responsible than if he had committed an assault or done any other act which the company never authorized *96him to do.” The case of Gaff v. Railway Co., 30 L. J. Q. P., 148 (107 E. C. L.) ; Seymour v. Greenwood, 30 L. J. Ex., 328 (7 H. & N., 358), and the Limpus case, supra, are noted and distinguished, saying: “If the station master had made a mistake in committing an act which he was authorized to do, I think, in that case, the company would be liable, because it would be supposed to be done by their authority.” To the same effect are the American authorities.
In Cosgrove v. Ogden, 49 N. Y., 255, it is said: “If the servant (entrusted with removing timber from the roof of a house) for some purpose of his own intentionally threw material upon a passenger, the master would not be responsible for the injury, because it would not be an act done in his business, but a departure therefrom by the servant to effect some purpose of his own.”
In Rounds v. Del., Lack. & W. Railroad, 64 N. Y., 129, Andrews, J., says: “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. 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, however, the servant, under the 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, the master is not liable. The relation of master and servant, as to that transaction, does not exist between them.” To the same effect are Mott v. Ice Co., 73 N. Y., 543 ; Ochsinbein v. Shapley, 85 N. Y., 214. Smith v. *97N. Y. Cent., etc., Railroad, 78 Hun., 524, is an instructive case on this subject. Plaintiff was standing on the platform; a local freight stopped and switched some cars, and was about to start, when Kiker, defendant’s station agent, stepped out and placed two torpedoes on the track, under one of the freight cars, and then ran back into the station house. The train moved off; the torpedoes exploded, causing a sharp fragment to strike and injure the plaintiff. The agent testified that he placed the torpedoes on the track to hear the explosion and with no object of signaling .the train, the purpose for which the torpedoes were furnished. Haight, J., said that the only question was whether the agent, in placing the torpedoes on the track, was acting within the scope of his employment, in the performance of a duty imposed upon him by the company. “If so, it was negligent and dangerous to explode the torpedoes in the vicinity of the station, where persons were standing upon the platform, and the company is liable; but if, by doing what he did, he went outside of his employment in order to effect a purpose of his own in exploding the torpedoes for his own amusement, and not for the purpose of signaling the train, then the company would not be liable.”
The leading case in Massachusetts is Howe v. Newmarch, 94 Mass., 49. Hoar, J., in a well-considered opinion, reviews the English and American authorities, and says: “In an action of tort, in the nature of an action on the case, the master is not responsible if the wrong done by the servant is done without his authority and not for the purpose of executing his orders or doing his work. So that, if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by' his act to execute it, does an injury to another, not within the scope of his employment, the master is not liable.- But if the act be done in the execution of the authority given by his master, and for the .purpose of performing what the master has directed, the master will be responsible, whether the wrong be occasioned by *98negligence or by a wanton or reckless purpose to accomplish the master’s business in an unlawful manner.”
In Brown v. Jarvis Eng. Co., 166 Mass., 75, Lolhrop, J., says: “The act of defendant’s servant was not a necessary or natural or proper result of anything that the servants were employed to do.” Obertoni v. B. & M. Railroad, 186 Mass., 481.
In Berry v. Boston El. Railway, 188 Mass., 536, referring to the act complained of, the Court says: “The boys were well known to the conductor, and it was apparent from the evidence that the conductor was playing a practical joke on the policeman.” Held, that defendant company was not liable.
In Cobb v. Simon, 119 Wis., 591 (100 Am. St. Rep., 909), the master was held not liable for wrongful arrest of a person by his clerk, who knew that no goods had been stolen, but made the arrest for the purpose of extorting money from the plaintiff. In Railway Co. v. Brown, 26 Ind., 70, the authorities are reviewed and the general principles clearly set forth.
In Cousins v. Railroad, 66 Mo., 572, it is said: “Two classes of cases have arisen under the rule now bding considered, in which the master is not liable for the acts of his servant. The first is'when the servant was, at the time the injury was inflicted, engaged in the performance of the service which he was engaged to render, -but the act which occasioned the injury did not pertain to the particular duties of the employment. Thus, if an engineer, while running a train, should shoot an unoffending man upon the roadside, the injury would be inflicted while the engineer was engaged in serving his master, but the act causing the injury would have no connection with that service and could not be considered as done in the course of the servant’s employment.”
Alvey, G. J., in Fletcher v. Railway Co., 6 Dist. Col. App. Cases, 385, p. 397, says: “The person who threw off the piece of wood that injured plaintiff was not in the performance of any duty required of him, but his act was wholly independent *99of any duty imposed upon Mm by Ms employment to work for defendant. In other words, Ms act was not one within any limit or scope of authority derived from the defendant as agent or servant in the performance of duty.”
In Stephenson v. Railroad, 93 Cal., 558, the action was for injuries sustained by the action of the engineer in moving his engine with the intent to frighten the passengers on a street car. DeHaven, J., said: “The engineer was not acting within the scope of his employment if his object in moving the engine was simply to frighten the passengers in the street car. Such an act, done for such a purpose, was entirely foreign to the object of his employment. The work which the engineer was to perform for defendant was to manage the engine while it was engaged in switching cars; and if he started the engine, not for the purpose of employing it in the service of the defendant, but to accomplish an independent purpose of his own, * * * it is immaterial that he used the engine of the defendant in order to accomplish his purpose.” By way of illustration, he says: “It would not be contended that one who 'employs another to sprinkle his garden and places in his hands a hose to be used for that purpose would bé civilly responsible in damages if, stepping aside from that employment, the servant should, either in sport or from malice, turn the same upon a person passing along the street. * * * In all the affairs of life men are constantly obliged to act by others; hut no one would venture to so act if the mere circumstance that he employed another to act for him about any general or particular business made him an insurer against all wrongs which such persons might possibly commit during the period of such employment.” The distinction is clearly stated in Little Miami Railroad v. Wetmore, 19 Ohio St., 110. The action was for an assault committed by the servant. The Court said: “The assault” was in no way calculated to facilitate or promote the business for which the servant was employed by the master, nor could it have been supposed to be *100or intended as an act with that view or object. It is not a case of excess of force and violence in executing the authority of the master, but rather an act beyond such authority or foreign to the objects of the employment.” Gilliam v. Railroad, 70 Ala., 268.
In Louisville & N. Railroad v. Routt, 76 S. W., 513, the Supreme Court of Kentucky held that the company is not liable for the act of a locomotive fireman in purposely throwing a piece of coal at one standing beside the track, not with any purpose of protecting the master’s property or furthering “its interest.”
In International & G. N. R. Co. v. Cooper, 32 S. W., 517, the Court says: “The distinction is this: That, if the act clone was one authorized to be done by the servants, and was at the time being done in the discharge of their duty as such servants, then the master would be responsible for the consequences to the plaintiff, although the servants might, in the discharge of their duty, maliciously or mischievously have thrown the Avater upon the plaintiff. It cannot be said that the act of putting the Avater upon the plaintiff must haA^e been authorized, because such an act would neA^er be authorized by a master; but it is the act itself of discharging the hot water that must have been done in the course of the employment of the servant and for the purpose of forwarding the business of the master. It does not matter that- the servant might haA^e used the same appliances in the discharge of a duty to the master, but the question definitely and distinctly presented is, Was the servant, in the particular case, in the discharge of such duty?”
The last case from which we quote is Evers v. Krouse, 70 N. J. L., 653. There the infant son of defendant was directed to sprinkle water on the lawn in front of the house. While engaged in this work, plaintiff left a horse tied near by. The boy turned the hose on the horse, so frightening it that it ran aAvay and was killed. In an action for damages against the *101father, he took an exception to the instruction that he would be liable if the boy, “through a mischievous disposition, threw the water upon or over the horse.” Gummere, G. J., wrote an interesting opinion for the unanimous Court of Errors and Appeals sustaining the exception. Eeferring to the case of Holler v. Ross, supra, he said that, while the rule laid down in that case had been followed in other jurisdictions, there had been much contrariety in its application. “This is due to the assumption in some courts that an act done by a servant while engaged in the master’s work is necessarily an act within the scope of the former’s employment. But this is conspicuously a non sequitur. An act done by the servant while engaged in the work of his master may be entirely disconnected therefrom, not as a means or for the purpose of performing that work, but solely for the accomplishment of the independent, malicious, mischievous purpose of the servant. Such an act is not, as a matter of fact, the act of the master, in any sense, and should not be deemed to be so as a matter of law.” The learned Justice notes the distinction between that case and Bittle v. Railway, 55 N. J. L., 615. In the last-named case the statute required the company to blow 300 yards distant from a highway crossing. The evidence showed that the engineer saw that plaintiff’s horse had become frightened at the approach of the train, when he wantonly and maliciously blew an extraordinarily loud and shrill blast from the whistle. The company was held liable, because it ivas the duty of the engineer' to blow the whistle at that point. It was within the scope of his employment, and because of that fact the rule of respondeat superior applied. The question has been before almost every court in this country, and, with a very few exceptions, decisions have been in harmony with those from which I have quoted. Turley v. Railroad, 70 N. H., 348; Railway v. Little, 67 Ohio St., 71; Healy v. Patterson, 123 Iowa, 73; Railway Co. v. West, 125 Ill., 320; Slater v. Thresher Co., 5 L. R. A., N. S., 598; Smith v. Railway Co., *10295 Ky., 11 (22 L. R. A., 72) ; Porter v. Railroad, 41 Iowa, 358; Ch. & N. W. Railway v. Bayfield, 37 Mich., 205; Palmer v. Elec. Co., 131 N. C., 250.
In Daniel v. Railroad, supra, and Sawyer v. Railroad, supra, this Court applied the principle upon which we have decided this case. In Jackson v. Tel. Co., 139 N. C., 347, the master was held liable upon the same principle. Bren-dle’s case is noted in Foot v. Railroad, 142 N. C., 52, but the .question presented here was not involved. Mr. Jaggard says that the English courts, at an early period, recognized the doctrine of a particular command in the test of liability; hence the maxim respondeat superior was usually invoked. By the modern view the test is generally held to be the scope of employment; but when we reason back to the principle, we find that, as said by many courts and writers, the basis in either view is the same — 'the master commands the servant to do the particular thing, and, by construction, such other things as are necessary to execute the command, such things being thereby brought within the scope of the employment. For the manner of doing the thing commanded to be done, including such things as are involved therein, the master is liable. When we use the term “command” we do not overlook the fact that the failure to obey instructions in the manner of executing the command does not absolve the master. If the servant keep within the scope of his employment, and, with the purpose of discharging his duty to his employer, depart from the orders given, or wantonly and willfully injure another in doing his master’s business,' the master is liable. In many cases the extent of deviation from the orders of the master Avhich will absolve him is presented. No such question arises here, and I simply refer to these phases of the question for the purpose of excluding the suggestion that I have overlooked them. It is said that in Everett v. Railroad, 121 N. C., 521; same case, 122 N. C., 1010, and Brendle v. Railroad, 125 N. C., 474, the defendant was held liable upon *103an' allegation and proof similar to tbat made in this case. We have examined the original record in these cases. In Everett’s case the complaint discloses an action for ' negligence, pure and simple. The allegation is that defendant’s servants “willfully, maliciously, negligently and unnecessarily” blew the whistle, etc., and “did frighten the plaintiff’s horses,” etc. The issue was in the usual form: “Were the plaintiff’s horses injured by defendant’s negligence, as alleged ?” The question under discussion was not raised or suggested, except in an instruction asked by the defendant: “Unless the jury believes that the person who blew the whistle blew it wantonly or maliciously, for the purpose of frightening the horses, 'he is not entitled to recover.” The instruction was refused. The Court instructed the jury that, if the servant blew the whistle negligently, for the purpose of frightening the horses, the defendant was liable. It is evident, from the record and the language of the Court, that the question was not raised or considered respecting the “scope of employment.”. The petition to rehear raises no such question. In Brendle’s case the complaint was in the same language, the action being for the injury to the driver upon the same occasion. It is true that the issue there contained the words “for the purpose of frightening the horses,” etc., but there was no such allegation. Both were actions for negligence,' and not for assault. Neither Court nor counsel, nor does this Court, consider the question presented here. The case is simply referred to in Foot v. Railroad, 142 N. C., 52, and not commented upon. I do not think that, in view of the facts appearing in the record, the cases can be -regarded as establishing the principle that a master is liable for the tort of his servant, committed while on duty, but for his own purpose and not in furtherance of his employment. In this case there is no suggestion that the defendant was negligent in the placing of its tramroad, the construction or condition of its engine, the employment of or instruction to its servants, or that it in any way ratified or *104approved the conduct of its servants. To bold it liable simply because it employed servants wbo departed from their duty, without any regard to the purpose of their employment and for a purpose of their own, wantonly and willfully diverted the instrumentality furnished for a legitimate use to the injury of the plaintiff, is, I respectfully submit, doing violence to the principles of both natural justice and sound law. Undoubtedly, persons — natural or corporate — should be required to exercise due care, to be measured by the peril to others, in entrusting dangerous instrumentalities in the hands of their servants, and it is but just to- hold them liable for a breach of duty in that respect; but, in the absence of any suggestion of want of such care, “it would be a hardship on the employers to hold them liable” for acts committed outside the scope of the employment.
The basis upon which the master is held liable for the acts of his servant is restated by the editor, in an exhaustive discussion of the subject, in 26 Cyc., 1518: “The master may be liable for the acts of his servant on either of the following grounds: (1) Negligence of the master in selecting his servants or instructing them as to the duties of their position; (2) an express demand to the servant to do the act resulting-in the injury to the third person; (3) acquiescence in or assent to former like acts of the servant or to the act in question; (4) the fact that the act of the servant was within the scope of his employment and in the line of his duties while engaged in such employment; and (5) ratification by the master of the act of the servant causing the injury to the third person.” It is manifest that this case does not come within either of the above classes,
It is strongly insisted, however, that, because of the dangerous instrumentality used, and the manner and place of its use, the owner is held to insure that persons passing along the highway shall not suffer any injury. This duty, if it rest upon the defendant, removes the case from the domain of neg*105ligence and of tbe law regarding tbe liability of tbe master for tbe acts of bis servant. It falls witbin tbe class known as absolute duties, and is based upon tbe maxim, sic viere tuo aliermm non leadas. If tbe instrumentality in tbe manner and place of its use comes witbin tbe principle involved in tbe maxim, no question of care, either in regard to tbe selection of tbe servant or bis conduct, can arise. It is tbe fact of sending tbe engine upon bis premises, near tbe bigbway, resulting in injury to tbe plaintiff, wbicb makes bim liable. No amount of care or caution relieves tbe owner of liability in tbe use of such instrumentalities. If tbe engine used, as described by plaintiff, is so essentially dangerous that, in contemplation of law, any damage flowing from its operation is actionable, although tbe complaint is drawn upon an entirely different theory, tbe plaintiff is entitled to at least actual damages.
Tbe principle is thus stated by Pollock: “Tbe law takes notice that certain things are a source of extraordinary risk, and a man who exposes bis neighbor to such risk is held, although his act is not of itself wrongful, to insure bis neighbor against any consequent wrong not due to some cause beyond human foresight and control.” The learned and accurate author says: “A rule casting tbe responsibility of an insurer on innocent persons is a bard, though it may be a just one, and it needs to be maintained by very strong evidence or very clear grounds of policy. * * * Tbe liability seems to be rested only in part on tbe evidently hazardous character of tbe state of things artificially maintained by tbe defendants on their land. In part, tbe case is assimilated to that of a nuisance.” Torts, 480. Tbe principle, in its application, is illustrated in a large number of cases in tbe reports. Tbe case of Rylands v. Fletcher, L. R., 3 (H. L., 330), has .been very much modified, both in this country and in England. In this State tbe liability for setting fire to adjacent buildings or woods by tbe engines of railroad and lumber companies is confined to negligence, either in the construction or opera*106tion of the engine or of the condition of tbe right of way. Anderson v. Steamboat Co., 64 N. C., 399; Aycock v. Railroad, 89 N. C., 321; Craft v. Lumber Co., 1§2 N. C., 151; Simpson v. Lumber Co., 133 N. C., 95; Knott v. Railroad, 142 N. C., 238.
In Thomason v. Railroad, 142 N. C., 300, the liability for injuries sustained by an adjacent owner and resident by noises, smoke, cinders, etc., in the operation of steam engines, is made to depend upon an allegation and proof of negligence; and in plaintiff’s appeal (p. 318) a demurrer was sustained' because it was not alleged that the injury was caused by a negligent use of the engines. Eor killing stock the liability is dependent upon negligence. I should hesitate to hold that a steam- engine operated over a tramway near to a highway for hauling logs, or stationary for ginning cotton or sawing lumber, or for any of the numerous lawful uses to which it is applied, is, in the absence of negligent construction, condition or use, within the principle fixing liability upon the owner as an insurer.
In Losee v. Buchanan, 51 N. Y., 416, the action was for the recovery of damages caused by the explosion of a boiler attached to a steam engine operated by defendants, throwing parts of the iron on plaintiff’s premises and building, injuring his property. The plaintiff contended that, in the absence of negligence, defendant was liable for a trespass. E.arl, J., reviewed the authorities, including Rylands v. Fletcher, concluding an able opinion: “In this case the defendants had the right to place the steam boiler upon their premises. It was in no sense a nuisance, and the jury have found that they were not guilty of any negligence.”
In Wabash & St. L. Ry. v. Farver, 111 Ind., 195, Mitchell, J., discussing the liability for damages caused by frightening a horse by the operation of a portable engine near the highway, says: “The work contracted to be done was not in itself unlawful, nor was it necessarily a nuisance to operate a porta*107ble steam engine in a careful manner in close proximity to a public highway.”
The same is held in a very strong opinion by Cooley, C. J., in Macomber v. Nichols, 34 Mich., 212. Judge Thompson, after discussing the question, concludes: “The sound view would seem to be that such an engine, as a means of locomotion, is not necessarily a nuisance, and the question whether its irse as such has in a particular instance been so negligently managed to the injury of others as to give rise to a right of action is one of fact for the jury as a question of reasonable conduct and management.” 1 Neg., 1312. It would be difficult to distinguish this case from one in which sparks are emitted, setting fire to woods or buildings, or where noises, smoke, etc., injure persons and property. Why would it not follow, applying the maxim, sic uiere, etc., that any blowing of the whistle, whether excessive or otherwise, or any other noise made by the engine by which a horse passing along the highway is frightened, gives a cause of action ? Certainly, if the same rule of liability be imposed as in the case of dangerous animals escaping from one’s premises, the doctrine must be carried to its logical results or the law made to adjust itself to each case as it comes before the courts. No matter how perfect the machine, how competent and careful the engineer, the instrumentality on or near the highway being under the ban of the law, all injuries caused by its use are actionable. The principle, within proper limitations, is sound and just. If I wish to keep a dangerous or vicious animal on my premises, it is but just that I should pay for any damage which my neighbor sustains by its escaping and going upon his premises, or to one passing along the highway. If, however, I wish to gin my cotton, bale my hay or saw the timber on my land into boards, or haul my logs to the mill, and for either of these purposes use a steam engine, it has heretofore been'supposed that my duty to my neighbor ahd the public was met by a proper placing, construction, selection of my servants and *108careful operation of the engine — that for a breach of duty in either of these respects I am liable — in the first case, as an insurer for any damage which my animal does; in the last I am liable for negligence, either on my own part or of my servants, and for torts committed by them within the scope of their employment. It may be that the defendant’s tramway was negligently placed so that any blowing of the whistle would have frightened the horses of persons passing the highway, or that it did not exercise due care in selecting its engineer ; but none of these things are alleged. As the case goes back for a new trial, it is within the discretion of the Court to permit amendments to the complaint presenting these or any of these questions which would be for the jury. I am of the opinion that, in the present condition of the pleadings, the defendant is not liable, no negligence being alleged or shown. I am not able to say, as a matter of law, that' the engine, as operated; was so essentially dangerous as to impose upon the owner the absolute duty of insurance against all damage. Much that is said upon the principal question assumes that the term “while in the employment” is synonymous with “in the scope or course of the employment.” The line is not always easy to draw, yet, if not drawn, the employer is made responsible for every tort committed by the employee during the time of his employment. No one has ever so contended, and certainly no court has ever so held. I have examined many of the authorities relied upon to maintain the liability of defendant. Many of them are actions for negligence in blowing the whistle, and all of them assume that the injurious act is done in the scope of the employment. In some of the cases there is a manifest confusion of expression and thought upon the subject, and an evident desire to confine the departure from principle and precedent to railroad companies. If conditions be such that the law should be so made, it would be much better for the Legislature to do so, defining clearly its limitations. I must confess that I am unable to see where *109tbe Court is to fix the line of responsibility when it departs from the principle and authority. My acquaintance with and observation of the character and conduct of locomotive engineers — men. into whose care and to whose skill, courage and fidelity we daily commit our own and the lives of our families, to say nothing of property — do not impress upon my mind the necessity for departing from the ancient landmarks and making exceptions to the universal principles of law. It is hardly probable, and the records of the courts do not show, that these men who, with heroic courage, wonderful skill and almost uniform fidelity, expose their lives driving these locomotives through the country by day and through the darkness, will wantonly, willfully and maliciously use steam whistles for the purpose of destroying life and property. They may do so negligently, and for this it is but just that their employers should be responsible. The relative rights and duties growing out of the relation of principal and agent, master and servant, employer and employee, both as between the parties and third persons, in the complex business of modern life, are of the utmost importance.
I do not suppose that in the application of the general principle any distinction is to be made between natural persons and corporations. In Railroad Co. v. Baum, supra, it is said: “Nor will sound policy maintain the application of a rule of law to railways or corporations on this subject which shall not be alike applied to others, as has been intimated in some quarters.” All of the courts recognize this principle. It can be of no concern to us whether the stockholders of the defendant are operating as a corporation or a partnership, or, for that matter, each individual conducting the business separately. In either case the necessity for employing servants is the same. The defendant insisted, and introduced evidence tending to show, that the whistle was blown and the other noises made because they were approaching a crossing, and that no more noise was made than was necessary for that pur*110pose. Tbis contention was properly presented to the jury. They found against it.
The defendant requested the Court to instruct the jury that, in the absence of any evidence tending to show a command or ratification of the act of its servants, they were not authorized to award punitive or vindictive damages. This the Court declined, and instructed the jury that, if they answered the first issue “Yes,” they could, in their discretion, give the plaintiff such damages. This Court has frequently held that, for assaults committed by the employees of a railroad upon passengers, the jury could, if they found wanton, malicious or even excessive force used, give primitive or vindictive damages. Holmes v. Railroad, 94 N. C., 318; Kelly v. Traction Co., 132 N. C., 368, and many other cases. To what extent these decisions, and those to the same effect in other States, are applicable to a case like this may be open to discussion. The general rule may be found in 3 Joyce on Damages, 2034: _ “In order to recover punitive damages against a master for the wrongful, negligent or grossly negligent acts of his servant, such acts must have been authorized, affirmed or ratified by'the master, or they must have been done in the line of the servant’s duty or employment, or the master must have known of the servant’s unfitness; and if the servant’s acts are wanton, willful or malicious, the master is liable for exemplary damages, if such acts are authorized, directed or ratified by him or the latter was implicated therein or instigated the same, or they were done for the master in the line of the servant’s duty, or were generally within the scopDe of his authority.” This language quoted does not appear to me very clear. Of course, if the wrongful act is wanton, willful, etc., and if expressly commanded or authorized or ratified, it becomes the act of the master in fact, and there can be no question of his liability to the same extent as the servant; they are joint tort feasors. But if the liability attaches by reason of the doctrine of representation *111as a matter of law — -that is, because witbin-the scope of employment — a much more serious question arises. One may direct his servant to perform an act, giving express command respecting the manner of its performance, carefully warning him against negligence. If, in doing the act, obeying his command in that respect, but in utter disregard of his directions and caution, he, by wanton, willful negligence, injure another, the master is liable for at least compensatory damages. Is he liable for vindictive damages ?
The Supreme Court of Tennessee, in Railway Co. v. Starnes, 56 Tenn., 52, held the company liable for the conduct of the engineer, and, in passing upon the exception to the instruction given the jury in regard to exemplary damages, said: “But this is not a case, we think, in which exemplary damages can be allowed. The act complained of was' manifestly done without defendant’s knowledge or consent, and was the willful and unauthorized act of the servant alone. If the action had been against the actual tort feasor, the rule would be otherwise.” This language opens up the original question of liability for the act of the servant. If the act was “unauthorized,” how did any liability attach? There is much confusion of language in the decisions growing out of the extension of the liability of the master for wanton, willful torts of the servant. Doubtless the Court, in the cases cited, hesitated to carry the doctriné of liability to its logical conclusion. The question is discussed in an extensive note to Crane v. Bennett, 101 Am. St. Rep., 722. Thé line of distinction between the cases in which the master’s liability for punitive damages is coextensive with the servant’s, and those in which it is confined to compensatory damages, has not been drawn.