(dissenting).
I am unable to agree with the majority of the court, first, as to the correctness of the rule of law announced in the opinion; and, second, as to the applicability of that rule to the facts in this particular case.
1. The authorities cited sustain the rule that the master is responsible for the torts of his servant in the course of the employment, with a view to the furtherance of the master’s business, and not for a purpose personal to himself. But the proposition that the master is not liable for the torts of his servant in the course of his employment, not done with a view to the furtherance of the master’s business, but for *155a purpose personal to himself, does not follow from this any more than it does from the rule in Shelley’s case. “Bad law may be easily made by taking the converse of a legal proposition for law.” Per Mr. Justice Gaynor in Novogrucky v. Brooklyn Heights, 125 App. Div. 715, 110 N. Y. Supp. 29. The authorities are wholly irrelevant, save only one, Larson v. Fidelity Mut. Life Assn., 71 Minn. 101, 73 N. W. 711. That case involved, a malicious prosecution, which proceeded upon the assumption that the servant had instituted criminal proceedings to subserve a purpose personal to himself. It was therefore held that the master was not liable for this independent tort. It will subsequently be pointed out that this view of the law is not at all inconsistent with submitting the question of liability of the master in this case to the jury. The authorities cited with reference to ratification are not in point, and are, in my opinion, wholly alien to the controversy at bar.
These artificial restrictions upon the master’s liability which the majority opinion imposes, therefore, stand unsupported by the authorities cited. There are authorities which are not cited which do tend to support them, but they are opposed to the overwhelming weight of authority in general and in this state in particular. The subject is a wide one. Its proper consideration involves a review and discussion of such extent as to preclude adequate presentation within the narrow limits appropriate to a dissenting opinion. All that is feasible, under the circumstances, is a partial summary, which is the result of an actual and immediate examination in detail of practically all the relevant authorities on both sides of the controversy.
All authorities agree upon the obvious proposition that the master is not liable for the independent torts of his servant. The difficulty arises in determining what is and what is not an independent tort. In cases where the wrong complained of has absolutely no connection with the master’s premises, instrumentalities, or facilities for doing business, the motive of the servant is a proper, and often a determining, consideration. This is particularly conspicuous in cases of false imprisonment and of malicious prosecution, as in Larson v. Fidelity Mut. Life Assn., supra. Even in these cases there is a manifest tendency to submit the question of the master’s liability to the jury. 19 Cyc. 328, 26 Cyc. 19. In these cases no special duty is imposed upon *156the master to the person injured, for the violation of which by his servant he could properly be held responsible, by virtue of the relationship alone. If, of course, the master has in any way authorized or ratified the tort, his liability would arise, not from the fact of the relationship, but from consent, before or after the tort. Cases of this kind come fairly within the familiar principle that the master is liable for the tort of his servant acting within the scope of his authority, liberally defined.
A larger liability has been recognized in all parts of this country in an increasingly large group of cases in which it is necessary, first, that the relationship of master and servant be established; and, second, that the servant’s act in the course of his employment violated a duty owed by the master to the person injured. This class of cases covers an extremely wide range. It includes (1) cases in which a relation, has been assumed by contract to which the common law has attached certain duties, as cases of common carriers, innkeepers, bailees for hire, proprietors of places of amusement who have charged admission, and others; (2) cases in which no duty was involved in connection with a contract, as in the group of cases in which a master has been held liable for the acts of his servants, done with a purpose personal to the servant, and whereby a customer, actual or prospective, has been injured; (3) cases in which the master has by means of an instrumentality not dangerous put the servant in a position to do harm; (4) cases in which a master has intrusted to his servant the custody of an instrumentality capable of doing harm, as an engine, or a horse and wagon, or the like; and (5) many other instances.
The conclusion reached by these very many cases has been stated thus: “If the wrongful act done by the servant is done in his representative capacity, and accords with the general scheme of his employment, the master should be held responsible for the injury done, whether the wrong was committed for the benefit of the master or for the servant’s own personal advantage.” Win. R. Vance, in 4 Michigan Law Rev. 210. In his note to Mallach v. Ridley, 24 Abb. N. C. 172, 9 N. Y. Supp. 922, Mr. Abbott says: “A few years ago it was almost universally held in this country that an act of the employee the motive of which appeared to be his own malice, did not render the employer liable even though done within the scope of the employment; *157but all the authorities which sanction that rule are now deemed in so far overruled; and in respect to the question of the right of action, the motive of the servant is now immaterial, and even the fact that the employer gave proper instruction and that the act was in direct violation of those instructions does not shelter the employees.”
In Stranahan v. Coit, 55 Oh. St. 398, 45 N. E. 634, 4 L. R. A. (N. S.) 506, where the master was held liable for the malicious act of the servant, with intent to injure the master, in adulterating cream contrary to law, the rule was laid down that “where a master owes to a third person the performance of some duty, as to do or not to do a particular act, and commits the performance of the duty to a servant, the master cannot escape responsibility if the servant fails to perform it, whether such failure be accidental or wilful, or whether it be the result of negligence or malice. Nor is'the case altered if it appear that the malice was directed to the master.” These statements may not be accurate in toto. None the less they summarize the certain trend of decisions in this country on this point. . It is true that in England the motive of the servant and the furtherance of the master’s business are in general the determining factors, and that the earlier Massachusetts cases taken as a whole, are in substantial, but not entire, qccord. The tendency of the later Massachusetts cases is to bring the law of that state into harmony with the general American rule. None of the cases which are apparently opposed, however, involved facts not distinguishable from those.at bar. Indeed, as will presently be pointed out, under the English theory, the question of this case would, 1 think, have been for the jury.
The rule of law as it was established by this court before the decision of this case is the one generally in force in this country, and is well illustrated in McCord v. Western Union Tel. Co., 39 Minn. 181, 39 N. W. 315, 1 L. R. A. 143, 12 Am. St. 636. In that case defendant’s local agent, who was also the agent of an express company, sent a forged dispatch to plaintiff, a merchant in a neighboring city, requesting plaintiff to forward money to plaintiff’s agent at defendant’s agent’s station. The money, in good faith forwarded by plaintiff, was intercepted by defendant’s agent and converted to his own use. Vanderburgh, J., (page 183), said:
“The principal contention of defendant is, however, that the corporation is not liable for the fraudulent and tortious act of the agent *158in sending the message, and that the maxim respondeat superior does not apply in such a case, because the agent in sending the dispatch was not acting for his master, but for himself, and about his own business, and was in fact the sender, and to be treated as having transcended his authority, and as acting outside of and not in the course of his employment, nor in furtherance of his master’s business. But the rule which fastens a liability upon the master to third persons for the wrongful and unauthorized acts of his servant is not confined solely to that class of cases where the acts complained of are done in the course of the employment in furtherance of the master’s business or interest, though there are many cases which fall within that rule. * * *
Where the business with which the agent is intrusted involves a duty-owed by the master to the public or third persons, if the agent, while so employed, by his own wrongful act occasions a violation of that duty, or an injury to the person interested in its faithful performance by or on behalf of the master, the master is liable for the breach of it, whether it be founded in contract or be a common-law duty growing out of the relations of the parties. 1 Shear. & R. Neg. (4th Ed.) §§ 149, 150, 154; Tayl. Corp. (2d Ed.) § 145. And it is immaterial in such case that the wrongful act of the servant is in itself wilful, malicious or fraudulent.”
2. At most, however, this was a case in which two motives were present, viz., the one to deliver coal for the master in pursuance of his business, and the other to take home the servant’s horse for his own purpose. Under the rule announced, and under conception of the facts adopted by the majority, the master would have been liable so far as the first of these was concerned and would not have been liable under the second. This aspect has not been considered. The great weight of authority is to the effect that where the servant, at the time of the commission of the tort, is engaged in executing his own private purpose, but at the same time is pursuing the master’s business in the matter for which he was employed, the law will not undertake to fix with precision the line which separates the act of the servant from the act of the individual. South Covington v. Cleveland, 100 S. W. 283, 286, 30 Ky. L. R. 1072, 11 L. R. A. (N. S.) 853; Barmore v. Vicksburg, 85 Miss. 426, 443, 38 South. 210, 70 L. R. A. 627. Thus in Gracey v. Belfast [1901] 2 Ir. R. 322, 324, Palles, C. B., said: “There *159is evidence that the servants while riding the horses upon the road to the forge, for their own amusement ran a race upon the horses towards the forge, and in so doing rode negligently, and thereby caused the damage. Are the masters liable? If we eliminate whát has been called ‘the purpose of running a race,’ admittedly they would be liable. In such a case, the act of bringing the horses to the forge would undoubtedly have been one in the course of their employment. * * * But the ground of the masters’ liability in such a case would not have been based on any such subtlety as that of a single purpose, as distinguished from several purposes, but because the servants would have been doing their masters’ business: * * * The act would have been done for the master. What, then, is the effect of the servants being actuated by the second purpose; that of riding a race? This second purpose was consistent with the first. * * * The basis of the case, therefore, is that a servant acting for two purposes, one of which is his master’s, and the other his own, renders the master responsible.”
Here Spears was in the employ of the defendant company. He delivered coal for them. He was subject to the company’s orders and in the company’s pay. The master had the right and power to command and control him at the instant of his start and of the performance of the causal act. The very horse he was taking home was one used for the company’s business. That title to the instrumentalities which he, or another servant, used on the company’s behalf, was in himself, is not controlling, nor especially significant, so far as plaintiff is concerned. See Standard Oil Co. v. Parkinson, 152 Fed. 681, 82 C. C. A. 29; Patten v. Rea, 2 C. B. (N. S.) 606; Rahn v. Singer Mnfg. Co. (C. C.) 26 Fed. 912, affirmed 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440; Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. 564. As a matter of law he had not abandoned his master’s business for his own, nor had he departed from it. It was at least a question of fact whether or not his purpose was in furtherance of his master’s enterprise and whether or not he was engaged in doing what his contract of service reasonably required. Mulvehill v. Bates, 31 Minn. 364, 17 N. W. 959, 47 Am. 796; Phelon v. Stiles, 43 Conn. 426; East St. Louis v. Reames, 173 Ill. 582, 51 N. E. 68. This was not a case where the servant was going on a frolic or errand *160of his own, without being at all on his master’s business. Therefore the master was liable. Joel v. Morison, 6 Car. & P. 501; Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29, 27 L. R. A. 161, and note, 38 Am. St. 361. Barmore v. Vicksburg, supra; Quinn v. Power, 87 N. Y. 535, 41 Am. 392.
Moreover, defendant’s superintendent, Hanson, whose instructions Spears was bound to obey, says he knew that the horse was tied to the wagon, as has been stated. Pie made no objection nor suggestion, and gave no instruction. The permission resembled command. Standard Steel Car v. McGuire (C. C. A.) 161 Fed. 527. And see Fletcher v. Baltimore & P. R. Co., 168 U. S. 135, 18 Sup. Ct. 35, 42 L. Ed. 411. On this state of facts, in England, it would seem that the master would have been held responsible. In Patten v. Rea, 2 C. B. (N. S.) 606, it was held that, if a servant is upon his master’s business when he injures a third person by driving against him, the master is liable, although the horses belonged to the servant and the servant was at the same time attending to business of his own (to visit a doctor). There, as in the case at bar, the “master knew that he was going, and in what manner he was going.” This servant was not as a matter of law acting in a capacity different from that in which he was employed, and the servant 'was not, as a matter of law, so far an independent contractor as to exonerate the master.
The present situation. is substantially the same as if a conductor of a street car, to the knowledge of the foreman of the company, should put a long pole through the right-hand window of his car to take home with him for piscatorial or other purposes. If that pole struck a person using the highway, the company would certainly be responsible, although the pole would be the conductor’s private property and was being conveyed for his purely personal purpose. The question whether this master was therefore liable is not to be determined as a matter of law in the master’s favor.