(dissenting). Although tbe opinion of tbe court has been extended to' great length in tbe discussion of authorities, it appears to me that tbe principles involved are few and simple. This seems to be conceded in tbe opinion. Tbe court says:
“Perhaps far too much labor has already been spent upon this case but we hesitate to lay it down, notwithstanding tbe principles governing it seem few, plain, and to have been many times declared and applied here. . . .”
Tbe defendant was a bailee for hire, and of course tbe ordinary rules of law relative to bailees are applicable, hence no *64extended citation of authorities would seem necessary. The defendant under the contract for hire was bound at least to use ordinary care to protect the automobile from use by parties other than the owner or persons authorized by the owner to use it. Elynn was the agent of the-defendant, charged with the duty of guarding and protecting the subject of bailment, namely, the automobile. At first blush it would strike one as a remarkable doctrine of law which would justify a bailee, who had contracted for hire to care for and protect the property of his bailor, to seek escape from liability because his agent to whom he had intrusted such duty had destroyed the property while charged with the duty his master had delegated to him of protecting it. This seems to be the situation which the case before us presents. It is not denied but that the defendant under his contract with the owner of the automobile owed him the duty of having at the garage when open some one to take care of the car and prevent it from being taken out except at the request of the owner, and to guard it from use by unauthorized persons. At the time in question such duties were intrusted by defendant to Elynn. It is well established law that the defendant here cannot escape liability on the ground of failure of the agent, Elynn, to perform his duty, whether such failure was wilful or the result of negligence or malice. Craker v. C. & N. W. R. Co. 36 Wis. 657; Stranahan Bros. C. Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634; Wharton, Agency & Agents, §§ 487, 543; Bryant v. Rich, 106 Mass. 180; McCord v. Western Union T. Co. 39 Minn. 181, 39 N. W. 315; Pullman P. C. Co. v. Gavin, 93 Term. 53, 23 S. W. 70; Richherger v. Am. Exp. Co. 73 Miss. 161, 18 South. 922; Jones v. Glass, 35 N. C. 305.
In the execution of his authority the agent represents his principal, and while so acting the acts of the agent are the acts of the principal, and whatever injuries result to third persons from the manner in which the acts of the agent are *65performed are attributable to tbe principal if tbe agent be acting in tbe execution of bis general authority to act, that is, in tbe scope of bis employment; but^tbe question as to wbat acts are witbin tbe scope of employment is not always easy of solution. It may, however, be laid down as a general rule that when a duty to a third person is intrusted to tbe agent by tbe principal, as between such third person and tbe principal tbe principal is liable for failure of tbe agent to perform.' In Jones v. Glass, supra, Chief Justice Ruffin, speaking for tbe court, said:
“If tbe defendant would have been thus liable for tbe act, bad it been that of bis own band, be is, as bailee, equally liable for it as the act of one to whose control and management be committed tbe slaves.”
Tbe doctrine is well stated in Wood in bis work on Master & Servant, sec. 321:
“In that class of cases where tbe master owes certain duties either to third persons or tbe public, whether tbe same arise from contract or statutory obligations, a different rule of liability exists from that which prevails when tbe liability sounds entirely in tort. When by contract, or by statute, tbe master is bound to do certain things, if be intrusts tbe performance of that duty to another, be becomes absolutely responsible for tbe mcmner in which tbe duty is performed, precisely tbe same as though be himself bad performed it, and that without any reference to tbe question whether tbe servant was authorized to do tbe particular act. . . . Where tbe master, by contract or operation of law, is bound to do certain acts, be cannot excuse himself from liability upon tbe ground that be has committed that duty to another, and that be never authorized such person to do the particular act. Being bound to do tbe act, if be does it by another be is treated as having done it by himself, and tbe fact that bis servant or agent acted contrary to bis instructions, without bis consent, fraudulently even, will not excuse him.”
If I understand tbe opinion of tbe court correctly it is conceded that tbe defendant is liable if Flynn was acting witbin *66the scope of bis duty at the time he took the automobile from the garage. The opinion reads:
“Little time need be spent with the contention of appellant that the scope of Elynn’s employment was confined to washing machines. He was the night man at the garage. That is plain. One of the duties of night men, evidently, is to wash machines. Necessarily Ms duties required him to prevent unauthorized interference with machines, to open and close the place as necessary to accommodate customers in taking out or putting them up, and to assist if' necessary. The difficulty was that he violated the very purpose of his employment instead of acting witMn the scope of it, in committing the trespass. It is hard to conceive a more plain case of stepping completely aside from the scope of one;s employment, within the rule stated, than occurred in this case.”
The opinion of the court seems to be grounded upon the proposition that the agent, Elynn, stepped aside from the scope of his duty in the circumstances causing the injury, and appears to ignore the proposition of law which makes the principal liable for the acts of the agent in violating the duty of the principal delegated to the agent to perform. An examination of the authorities will show that there is considerable confusion in the books as to when the principal may escape liability for the acts of the agent outside of the scope of his duty, or, more accurately speaking, when the agent is outside the scope of his duty in the particular case. The confusion results from determining upon the facts of each case when the agent is and when he is not acting outside of the scope of his duty. In the case at bar, however, it would seem plain under the authorities heretofore cited, as well as numerous others which might be cited, that no serious question respecting the scope of Elynn’s duty arises in this case, because the defendant, being a bailee for hire and bound under his contract to protect the machine, and having delegated that duty to Elynn, was liable for the breach of that duty by him. As *67said in McCord v. Western Union T. Co. 39 Minn. 181, 183, 184, 39 N. W. 315:
“Where the business with wbicb 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 Shearm. & Redf. Neg. (4th ed.) §§ 149, 150, 154; Taylor, Corp. (2d ed.) § 145.”
In the case at bar it would seem plain that since the agent, Elynn, was bound to protect the car, the master could not escape liability because the agent violated such duty. To step aside from duty -means more than to commit a tort within it. No one would claim but that the bailee himself would'be liable had-he done the acts complained of here. And it is settled in this state and many others, and is not disputed in the majority opinion, as I understand it, that the agent, when charged by the bailee with the duty of protecting property, stands in the place of the bailee and his acts are chargeable to the bailee. Craker v. C. & N. W. R. Co. 36 Wis. 657; Jones v. Glass, 35 N. C. 305; Mechem, Agency, § 740; Milwaukee & M. R. Co. v. Finney, 10 Wis. 388; McMahon v. Chicago City R. Co. 239 Ill. 334, 88 N. E. 223; Goddard v. G. T. R. Co. 57 Me. 202; Birmingham R. & E. Co. v. Baird, 130 Ala. 334, 30 South. 456; Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1; Brooks v. Jennings Co. A. J. S. Asso. 35 Ind. App. 221, 73 N. E. 951; Bryant v. Rich, 106 Mass. 180; Richberger v. Am. Exp. Co. 73 Miss. 161, 18 South. 922; Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70; Williams v. Brooklyn D. T. Co. 12 Misc. 565, 33 N. Y. Supp. 849; McCord v. Western Union T. Co. 39 Minn. 181, 39 N. W. 315; Campbell v. Pullman P. C. Co. 42 Fed. 484; Barrow S. S. Co. v. Kane, 88 Fed. 197; Houston & T. C. R. Co. *68v. Bush (Tex.) 133 S. W. 215; note 4 L. R. A. n. s. 485; Stranahan Bros. C. Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634; Bergman, v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424; Schultz v. La Crosse City R. Co. 133 Wis. 420, 113 N. W. 658.
Tbe scope of the agent’s duty has reference to tbe proper care, protection, and preservation of tbe property intrusted to .bim, and when be violates that duty and damage results therefrom to tbe property tbe master is liable.
In Craker v. C. & N. W. R. Co. 36 Wis. 657, tbe conductor committed a tort in assaulting a passenger, and bis act was contrary to bis duty under tbe contract of carriage, which was to exercise a high degree of care in protecting passengers. Tbe court said:
“But we need not pursue tbe subject. Eor, however that may be in general, there can be no doubt of it in those employments in which the agent performs a duty of tbe principal to third persons, as between such third persons and tbe principal. Because tbe principal is responsible for tbe duty, and if be delegate it to an agent, and tbe agent fail to perform it, it is immaterial whether tbe failure be accidental or wilful, in tbe negligence or in tbe malice of tbe agent; tbe contract of tbe principal is equally broken in tbe negligent disregard, or in tbe malicious violation, of tbe duty by tbe agent. It would be cheap and superficial morality to allow one owing a duty to another to commit tbe performance of bis duty to a third, without responsibility for tbe malicious conduct of tbe substitute in performance of tbe duty. If one owe bread to another and appoint an agent to furnish it, and tbe agent of malice furnish a stone instead, tbe principal is responsible for tbe stone and its consequences.”
On tbe question of turning aside from duty there is no difference in principle between tbe Gralcer Case and tbe instant case. Tbe fact that a higher degree of care is due from a common carrier than from an ordinary bailee for hire does not change tbe rule as to scope of duty. In each case it is a tort *69or disregard of duty committed iu tbe line of duty. In the one case the agent’s duty was to protect the passenger, in the other the property. In each case the agent was within the line of his duty, but, disregarding it, violated the express contract which he was bound to perform.
In my opinion the Graher Case governs the instant case, and the rule of that case is’ supported by the great weight of authority, as shown by the cases heretofore cited and many others. The doctrine of the Graher Gase has been repeatedly referred to and approved by this court. Bergman v. Hendrickson, supra; Johnston v. C., St. P., M. & O. R. Co., supra; Schultz v. La Crosse City C. Co., supra; and many other cases in this court.
In Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, the duty of the agent was to preserve order and to remove offensive patrons or guests, and it was held that where the servant unjustly attacks and injures an offensive patron the master is liable.
In Richberger v. Am. Exp. Co. 73 Miss. 161, 18 South. 922, the rule is.discussed respecting the change from the old doctrine that the master was never liable for the wilful or malicious act of his servant and the rule laid down that the true test of liability now rests upon whether or not the injurious act was done in the course of the master’s business.
Stranahan Bros. C. Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634, holds that where the master owes to a third person the performance of some duty and commits the performance of such duty to a servant, the master cannot escape responsibility if the servant fails to perform it, whether such failure be ac•cidental, wilful, or the result of negligence or malice.
Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, holds that, while a sleeping-car company is not a common carrier or innkeeper, it is liable for the theft of money of a passenger on the sleeping car by the porter in charge of the car.
McMahon v. Chicago City R. Co. 239 Ill. 334, 88 N. E. *70223, bolds that while the appellant was a common carrier of passengers it was not an insurer, but was bound to protect passengers from violence, and that if the passenger was assaulted or insulted through the negligence or wilful misconduct of the carrier’s servant the carrier is responsible. To the same effect is Goddard v. G. T. R. Co. 57 Me. 202.
In Williams v. Brooklyn D. T. Co. 12 Misc. 565, 33 N. Y. Supp. 49, the defendant agreed to guard the plaintiff’s residence from burglars and thieves during a certain period, and it is held that the defendant could not escape liability for the act of the guard employed in breaking into the house and stealing therefrom, because, the defendant having contracted to perform the duty, when it committed it to another it did so at its peril; that the act of the agent is to be treated as defendant’s own act, and it is liable for whatever the agent does, even though done contrary to instructions, wilfully, or fraudulently.
I have no quarrel with the cases cited from this court in the opinion. None of them are out of harmony with the Craker Case and some of them strongly support and approve it.
I shall briefly review the principal cases relied upon in the opinion of the court from other jurisdictions.
In White v. Comm. Nat. Bank, 4 Brewst. 234, the box of valuables was deposited with the bank as a gratuitous bailment, and it was held that the bank, having used due diligence in keeping the goods, was not liable, although they were stolen. Besides, it appears in the case that the bank received the deposit at the risk of the depositor. Moreover, the case went off on the proposition as to whether the box was lost by any of the officers of the bank while in the discharge of their duties and the degree of care which the law imposes under such circumstances, the court holding that under the circumstances the bailee was liable only for gross negligence.
Foster v. Essex Bank, 17 Mass. 479, is also a case of gratuitous bailment, and it was held that the bank was not liable for stolen goods where due care has been used. The deposit *71in tbis case was kept under tbe supervision of tbe depositor, be having tbe key. It was contended tbat tbe deposit was made under contract to keep safely, but it was beld tbat no authority •existed to make such contract.
Ellis v. Turner, 8 Term Rep. 581, simply states the general rule to the effect tbat tbe master is liable for the acts of tbe servant in things with respect to his duty, though the master is not answerable for the agent’s misconduct in things tbat do not respect his duty to tbe master.
Coleman v. Riches, 16 C. B. 104, is very remote in its application. The case is one where wilful fraud had been committed in giving a receipt for grain delivered which bad not been delivered.
Adams v. Cost, 62 Md. 264, is a case where a person placed his mare at livery and instructed tbe servant of tbe proprietor to take her out for exercise, which was no part of the contract of livery, and while the servant had her out for such purpose •she died. Held, and very properly of course, that tbe proprietor of the stable was not' liable though the mare died in consequence of the immoderate riding and carelessness of tbe servant.
Maddox v. Brown, 71 Me. 432, is a case where a son, in tbe .absence of his father and without his knowledge, took his father’s horse and carriage, left the horse unfastened, and it being frightened ran away, and the carriage collided with the plaintiff’s and injured it. Held, tbat tbe father was not liable.
Merchants Nat. Bank v. Guilmartin, 88 Ga. 797, 15 S. E. 831, is a case of gratuitous bailment. The deposit was received at tbe banlc through its cashier and tbe cashier stole tbe deposit. Held, tbat the banlc, having used tbat degree of diligence which tbe law required under tbe bailment, was not liable. In tbis case tbe court said (page 801) :
“The custody of tbe deposit implies no act to be done, but only a mere continuance, of possession until a return of tbe *72property is demanded. The cashier had nothing to do about it except suffer it to remain in a safe place of deposit. Consequently in taking it to himself he is said to ‘step aside’ from his employment to do an act for his personal gain, regardless of the business for which he was engaged.”
Cavanagh v. Dinsmore, 12 Hun, 465, is a case in which the plaintiff’s intestate was run over and killed by defendant’s truck through the negligence of the driver while pursuing an unauthorized course, and it was held that the driver was not. acting in the business of his master at the time of the accident, hence defendant was not liable.
Stone v. Hills, 45 Conn. 44, is also a case where the driver of a team was acting outside of the scope of his duty when the injury occurred, and was held not to be in the employment of the defendant.
Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 326, involves the question of liability upon a check signed by the cashier of an incorporated bank.
The two cases mainly relied upon to support the majority opinion are Evans v. Dyke A. Co. 121 Mo. App. 266, 101 S. W. 1182, and Sanderson v. Collins, 90 L. T. Rep. 243. In Evans v. Dyke A. Co. it appears doubtful from the record whether there ever was a delivery to the company, but, even if so, there was no special duty, upon the facts of the case, due' from the company to the plaintiff, by special contract or otherwise, to care for or protect the machine. The machine was simply intrusted by Evans to Lemon, agent of the company. It appears from the opinion and the facts stated that the agent used the machine in a capacity wholly detached from his employment.
In Sanderson v. Collins it does not appear that the coachman was charged with any duty of caring for or protecting the-machine during the night. It appears that when the coach was put in for the night the coach house was locked and the key left with the master or kept in the hall of his house. It *73is true that tbis ease approaches more closely the instant case than any other cited in the opinion, but I think it may be distinguished from the case at bar, and, if it cannot be, my opinion is it ought not to be followed.
I think the judgment of the court below should be affirmed.
I am authorized to say that Mr. Justice Siebecxee and Mr. Justice TimtjN concur in this dissent.
A motion for a rehearing was denied June 4, 1912.