(dissenting): — I dissent from the majority opinion in this case, principally for the reasons stated by me in the dissenting opinion filed in the case of Whiteaker v. Railroad, 252 Mo. 438, 1. c. 463; also for the reason that it is absurd, to my mind, to say that public service corporations of the country in employing men to conduct their business thereby authorize them to commit murder or other felonies, which constitute no part of the acts performed by them as such agents. No such idea ever enters the minds of the carrier, their employees or any of their customers; consequently, it is a non sequitur to say that such an agent or employee as Joiner, in this case, was acting within the scope of his employment when committing the crime with which the petition charges him — one of the most heinous known to Grod and man. In other words, no such corporation could, by express authority, authorize one of its employees to commit a crime in the performance of his duty to the company, unless he was acting within the scope of his employment. If such authority should be given, it would clearly be ultra vires, and not binding on the company; but should the officers of the company direct the agent to commit a crime and he should perpetrate it, then he and they would be particeps criminis in its commission, which, in no manner, could or would render the company liable to the injured party in damages; consequently, in order to render'the company liable in such a case, the agent must be acting within the scope of his employment, that is, the crime committed must have been a part of or an integral element of the act he performed for the company under its contract with him authorizing him to perform the same; and in such a case it is wholly immaterial whether his authority to commit the crime was given in express terms or im*652plied from the authority to perform the act of which the crime was a part. This is self-evident.
That being true, then let us for a moment briefly consider what services or acts the agent was employed to perform for the defendant. While the petition does not state them in detail, yet in general terms it charges that he was the agent of the company at Edwardsville, Illinois, and that it was his duty to deliver to its patrons all goods transported by it to them at that point, and to take their receipts therefor.
It is also charged that the goods which the company had transported to plaintiff at Edwardsville, had been delivered to him by the agent-days prior to the day upon which the shooting occurred.
From this statement in the petition it is clearly seen that the act of delivering the goods in no manner caused or contributed to the injury; that service had been fully performed long before the shooting occurred. So this fact will be dismissed without further consideration.
Consequently, if the company is liable to plaintiff, it must be for the reason that it authorized the agent to use violence if necessary toward the plaintiff in the performance of the service of the company in procuring the receipt for the goods delivered to him.
There is no charge in the petition that the defendant had given the agent express authority to commit the assault upon the plaintiff, and, therefore, if the agent possessed that authority, it must be implied from the general authority given by the defendant to all of the agents, the plaintiff included, to take receipts from its patrons for goods transported for and delivered to them. So it is seen that the question has been narrowed down to the single legal proposition, was the crime committed by the agent, a part of, or an integral element of the act of the agent in demanding the receipt of the plaintiff for the goods previously delivered to him?
*653That question, in my opinion, must he answered in the negative. The authority of the agent to demand and receive the receipt in no manner required the exercise of any force or violence on his part toward the plaintiff, nor is such a thing contemplated by any one in the performance of such a duty; and if procured by violence, the receipt would be worthless for the purpose for which the company wanted it, namely, as evidence of the delivery of the goods. Its procurement by that means would amount to duress or robbery, which would render the receipt illegal and destroy it as evidence of the delivery, the design of the company in demanding it.
Clearly the case of Haehl v. Wabash Ry. Co., 119 Mo. 325, does not support the propositions of law announced by our learned commissioner in this case. In that case the performance of the act of the agent for the defendant, which resulted in the death of Haehl, was authorized by the company, and from the very nature of that act,, force or violence was contemplated, if necessary, for its performance. There the agent was a watchman, and among other things he was required to keep trespassers off of defendant’s bridge, and while expelling Haehl therefrom the latter was killed by the agent. In discussing that case, the court on page 340, said:
‘ ‘ It is conceded that a part of the business which Hill was employed to perform as watchman, was to keep trespassers off of defendant’s bridge; this necessarily involved the duty of putting them off after they got on, if they were found unwilling to go. The evidence tended to show that Hill was engaged in the performance of this duty when he fired the fatal shot; that the business was not done; that it was not taking care of itself, but that the defendant’s servant at the time was engaged in it and concerned about it; that he shot dum fervet opus; and so far as evidence discloses, was concerned about, and engaged in, no other business.”
*654In the case at bar, the duty of the agent to demand the receipt from the plaintiff did not involve the duty of using force or violence toward him. Nor does the case of Whiteaker v. Ry. Co., 252 Mo. 438, lend any support to the opinion of the commissioner. In that case it was the duty of the conductor of the train to keep trespassers off of it. There the court held, as in the former case, that the act of expelling persons from the train necessarily implied the authority to expel them therefrom by force, if necessary, and that if more force was used than was necessary to accomplish his ejection, and he was thereby injured, then the company was liable. I dissented from the opinion in the latter case, not because it did not announce correct legal propositions, but for the reason that there was not sufficient evidence upon which to base them, as will appear .by the dissenting opinion filed therein.
But in both of those eases, this court clearly recognizes the principles of law I am here contending for. In the.first case this court on page 339,. said:
“But if his [the master’s] business is done, or is taking care of itself, and his servant not being engaged in it, not concerned about it, but impelled by motives that are wholly personal to himself and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has and can have no tendency to promote any purpose in which the principal is interested and to promote which the servant was employed, then the wrong is the purely personal wrong of the servant for which he and he alone is responsible.”
The case of Rounds v. Railroad, 64 N. Y. 129, is one of the.best considered cases in this country upon the subject, and clearly supports the views I have here expressed. At page 136, Judge Andrews puts the matter clearly:
“If he [the servant] is authorized to. use force against another when necessary in executing his mas*655ter’s orders, the master commits it to him to decide what degree of force he shall use; and if through misjudgment or violence of temper he goes beyond the necessity of the occasion and gives a fight of action to another, he cannot as to third persons be said to have been acting without the line of his duty or to have departed from his master’s business. If, however, the servant', under the guise and cover of executing his master’s orders and exercising the authority conferred upon him, wilfully 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 serant as to that transaction does not exist between them. It is a wilful 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 wilful 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.”
At page 137 : “It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the baggageman. .
But the 'court could not say from the evidence that the brakeman [baggageman] was acting outside of and' without regard to his employment or designed to do the injury which resulted, or that the act was wilful within the rule we.have stated.”
In the case of Pendleton v. Kinsley, 3 Cliff. 416, Fed. Case No. 10922, Judge Clifford said: “The moment the passenger enters the steamer or other conveyance he is more or less under the control of the master- or conductor and subject to their orders. Fit or unfit, humane or brutal, good-tempered or morose,’ the passenger is comparatively helpless and may be obliged to submit for the time without any means' of redress.”
*656In the case at bar, as stated by counsel for respondent : ‘ ‘ The assault upon appellant was not committed upon the premises of the respondent, but appellant assaulted him upon the public highway near the premises of the respondent, and after being intercepted by respondent’s agent while he was on the way to respondent’s office in response to a telephone-message from the respondent’s agent requesting him to come to the office. Plaintiff was not under the ‘control’ of defendant or any of its agents and so ‘helpless and obliged' to submit without any means of redress’ within the reason of the rule. ’ ’
Where the reason for the rule stated by Judge Clifford fails, the rule fails also, and therefore, the defendant was not the insurer of the safety of the plaintiff against assaults made by its agents, except when acting within the scope of their employment.
Thompson on Corporations (1 Ed.), in section 6298 states: That the old rule that the master was in no case liable for the wilful or malicious act committed by the servant is unsound. In section 6299, entitled ‘ ‘ The True Test Suggested, ’ ’ he says: ‘ ‘ The modern rule is, that if a servant, authorized to use force about his master’s business, uses excessive force, his master must answer in damages to the person thereby injured, wholly without reference to the state of mind under which the servant acted. If he is required to use force, and is left to his discretion as to how much he shall use, the master will, upon either view of the subject [i. e., whether with or without malice], be answerable if he uses too much force through negligence.”
In section 6300 he says: “It must now be conceded as a modern rule that the mere fact that the wrong complained of was wilful or malicious, or that in doing it the state of mind of the actor was really that which is characterized by the use of the words ‘malice,’ ‘hatred’ or ‘ill-will,’ does not exonerate the corporation from liability. But on the other hand-, *657this very state of mind of the actor may he relevant evidence, and in some cases of the most cogent nature, to show that when he did the act he was not acting for the corporation. . . . The actor may he the agent, and even a principal officer of the corporation, and he may even at the time of doing the wrongful act he intending to serve the corporation, and yet the act may be of such a character so extraordinary as to defeat any presumption that is could possibly he authorized by the corporation. . . . Assuming in such cases that there is authority to use force in case of resistance or non-compliance with orders, may not the force used he so extreme — may not the weapon employed be so unusual — as entirely to defeat this presumption of authority?”
In Richberger v. Express Co., 73 Miss. 161, the court, at page 171, refers with approval to Rounds v. Delaware, Etc. R. R. Co., 64 N. Y. l. c. 136, quoted in Railroad v. Latham, 72 Miss. 32, to show when in this character of case the corporation would not be liable, and quotes at the end of the opinion from Rounds v. Delaware, Etc. R. R. Co., to show when liability exists.
Next consider 2 Cooley on Torts (3 Ed. — Lewis), sections 627, 631, 632. In section 627: “But the liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master’s business. It does not arise where the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could he supposed from the nature of his employment to have authorized or expected the servant to do.”
Judge Cooley, for the Supreme Bench of Michigan, in a case of a boy, the servant of defendant, driving over plaintiff, approved an instruction that “if the hoy ‘drove in a careless and reckless manner, he would he acting within the scope of his master’s employment; *658but that if he wantonly, wilfully and intentionally ran over the plaintiff, he would not be acting within the scope of his master’s authority. But if he carelessly,' unintentionally and accidentally ran over the plaintiff, then the plaintiff should recover.’ ” “This instruction” (says Judge Cooley) “was all the defendant could reasonably aslc. It stated the law correctly and fairly. If it was a case of intentional injury, defen-' dant was not responsible.” [Cleveland v. Newsom, 45 Mich. 62.] This opinion of Judge Cooley’s was approved and declared to be the law of Michigan in 1911 in the case of Ducre v. Sparrow-Kroll Lumber Co., 168 Mich. 49, opinion by McAlvay, a case where a salesman wantonly and wilfully beat with a hammer a drunken person who came into the store. “It was a wanton, wilfull and intentional injury committed without regard to consequences and within a narrow margin of having resulted in the crime of manslaughter. Under the circumstances presented by this record', such an act cannot be held to have been committed by this man while in the performance of his duties for defendant within the scope of his employment; and our conclusion is that, as a matter of law, no liability attached to the appellant.” [Ducre v. Lumber Co., supra.]
Woods’ Law of Master and Servant (2 Ed.), sections 307-309. — In section 307 it is said: “The simple 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 fairly be said to have been authorized by him. ’ ’
In section 309, at page 585, it is said: “He must have been authorized, either expressly or impliedly, to do the act in some manner, which he has improperly or wrongfully performed, and the fact that he was *659only authorized to do the act in a certain way does not save the master from liability.”
At page 586 it is said: ‘ ‘ The rule may 'be stated thus: For a wilful and malicious trespass of a servant, not commanded or ratified by the master, but perpetrated to gratify the private malice of the servant under mere color of discharging the duty which he has undertaken'for his master, no action will lie against the master. But if the act of the servant was necessary to accomplish the purpose of his employment and was intended for that purpose, however ill-advised' or improper, then it was implied in the em-' ployment, and the master is liable, though the servant may have executed it wilfully and maliciously.”
In Shearman & Redfield on Negligence (6 Ed., by Street), sec. 146, p. 356, it is again said the master is liable for the acts of his servant in the course of the servant’s employment. In section 148 it is said: “The fact that the servant was at the time of the injury engaged in the service of his master is not conclusive of the master’s liability. . . . The act complained of must be within the scope of authority which- the agent had from the master, or which the master gave the servant reasonable cause to believe that he had or which servants employed in the same capacity usually have or which third persons have a right to infer from the nature and the circumstances of the employment. ’ ’
In Clark & Styles, on Law of Agency, sections 491, 493, 494, 502, are cited. In section 502, concerning assault and battery by agent, it is said: “In accordance with the principles heretofore considered a principal may be held liable for an assault committed by his agent in the course of his employment and for the purpose of advancing the principal’s interests. Hence, in cases where an agent is authorized to use force against another in order to carry out his principal’s orders, the principal commits it to the agent to decide what degree of force he shall use, ’ ’ and the prin*660cipal is held liable for excessive force of wanton assaults. “If . . . the agent . . . ., where he is not authorized to use force at all, wilfully and designedly, for the purpose of accomplishing his own independent, malicious and wicked purposes, does an injury to another as by assaulting him, the principal is not liable therefor.”
All such men should stand before the courts and jurors of their country in the nakedness of their crime, unveiled with the cloak of apparent authority from their employer, who never dreamed of such depravity, aud receive the just punishment the law wisely prescribes for them. They are nothing but criminals disguised in sheep’s clothing.
But it is said, what will become of the innocent and injured public who suffer at their hands? Answer : What becomes of the innocent and injured public who suffer at the hands of all criminals, regardless of their avocation in life? All such criminals should be swiftly tried and speedily punished for their violation of the law, regardless of the badge they wear, whether that of an individual, an agent or an officer of the law; and in my opinion, those who commit crime under the guise of real or apparent authority are more guilty than the individual who acts upon his own initiative and responsibility, for the latter knows that he must alone meet the charge and suffer the consequences thereof, whereas the former cowardly shield themselves behind their cloak of real or apparent authority to reek their hellish designs upon others.
The score and a half or more authorities cited in the majority opinion in support of companies’ liability, as well as the many more that might be cited, show to what extent this subterfuge has been resorted to as a cloak under which to commit wrong, knowing or supposing that the company, prompted by its financial interests, will defend the civil side of all such civil actions, and thereby at the same time extract from the *661crime the poisonous malignity which prompted it, and thereby stay criminal prosecution.
In my opinion, it would be for the better public policy to let all such criminals know that they, and they alone, must personally stand responsible for such crimes; and at the same time give full force and effect to the letter and spirit of the contract of employment, namely, that the agent is to transact the 'business of the employer in an efficient, prudent and careful manner, and not to commit crime against God and man under the cloak of its authority.
The law is and always has been that where the principal exercises ordinary care and prudence in the selection of an employee, he is not liable to a fellow employee because of injury inflicted in consequence of the unskillfulness of the former. That being true, then how much stronger is the reason for the law which universally holds that no person is liable for the crime of another without he is a party to it or a conspirator in its commission?
In the case at bar there is no evidence tending to show that the respondent employed Joiner to commit the crime charged in the petition, or that it was necessary for him to commit it in asldng for the receipt, nor that the respondent conspired with him or knew of its commission until long thereafter.
Public service corporations must, because of the very nature of their business, conduct the same through numerous agents and the law presumes that they are men of good character and law abiding; and never presumes that any one will commit crime, and under that presumption it does seem to me that it is a harsh and unjust rule which holds such a company liable for the crime of one of its agents, the commission of which was not contemplated, necessary or within the scope of his employment, expressed or implied, but was wholly beyond the legal bounds of contractual *662liability. If liable, it is because the company was a party to the crime, of which, there is no evidence.
Of course, had Joiner injured the appellant while acting, within the scope of his employment', the company should be held strictly liable, but not otherwise.
I am therefore of the opinion that the judgment of the circuit court should be affirmed.
Blair, J., concurs.