after stating tbe case: Passing the question raised by defendant’s exception to bis Honor’s refusal to grant tbe motion for judgment of nonsuit, and assuming, -for tbe purpose of disposing" of this appeal, that tbe question whether the flagman, when be shot plaintiff, w-as acting in tbe scope of bis employment or tbe line of bis duty, was properly submitted to tbe jury, tbe defendant is entitled either to a judgment upon tbe verdict or to a new trial. While tbe members of tbe Court are not agreed in regard to tbe correctness of bis Honor’s ruling upon tbe motion for judgment of nonsuit, a majority of them are of tbe opinion that defendant was entitled to have its motion for judgment upon tbe verdict allowed. Whatever differences of opinion may have existed in tbe past, tbe decided weight of judicial opinion concurs that for torts committed by tbe servant while on duty and acting within tbe scope of bis employment 'or line of bis duty, proximately injurious to another, tbe master is liable. Tbe fact that the tort was committed recklessly, wantonly or willfully, if within tbe scope of tbe employment, does not exonerate tbe master. Tbe view which has, after most careful consideration, been adojffed by both English and American courts is thus stated'by Sir Frederick Pollock, probably tbe most accurate writer on'tbe subject now living: “A master may be liable for tbe willful and deliberate wrongs committed by tbe servant, provided they be done on tbe master’s account and for bis purposes.” For an interesting and exhaustive discussion of this subject see 2 Beven on Neg., Book IY, p. 554. This limi*475tation is both scientific and practical. Certainly no one will seriously contend that á master is an insurer of his servant’s conduct in respect to torts committed by him while in his employment, without regard to the pivotal question whether such conduct had any relation to or was in the scope of the employment. To maintain that he is, it must follow that almost unlimited control should be given the master over the servant, to the end that he may protect himself against such unlimited liability. The laiv must be both reasonable and practical — that is, it must commend itself to the sense of justice of the average man and be capable of practical application .to the manifold relations of our modern, industrial, social and domestic life. It is manifest that judicial thought upon the subject, since the decision of McManus v. Crickett, 1 East., 106, has been affected by the introduction of the industrial corporation into the field of litigation, and the measure and standard of liability of the master for the torts of the servant has been enlarged and extended to meet the changed conditions of employment of servants by these impersonal agencies. Liability has been fixed upon corporations for torts of its servants which, if applied to natural persons engaged in mercantile, mechanical and agricultural employments, and especially to those employing domestic servants, would shock the reason, produce startling consequences and be restricted by legislation. Mr. Beven, speaking of 'the development of the doctrine of liability of the employer for the torts of his employee, says: “From this limited beginning its scope has become so almost universal in modern law that Jessell, M. R., thus comments on it: ‘It is clear that, on principle, a man is liable for. a man’s tortious act if he expressly directs him to do it, or if he employs that other person as his agent, and the act complained of is within the scope of the agent’s authority.’ I agree that the court ought to be very careful how it extends the doctrine, respondeat superior. It has been carried in our law very far, indeed — I think, quite far enough.” Smith v. Keal, 9 Q. B. D., 351. However this may be, and whether the law is at present upon a permanent and satisfactory basis, it is manifest that for the torts of the servant the master’s liability is limited to those committed within the scope of the employment— *476in furtherance of Ms business; for, as said in McManus v. Crickett, supra, “No master is chargeable with the acts of his servant but when he acts in the execution of the authority given him.” The’ same thought is clearly expressed by Mr. Justice Walker, in Daniels v. Railroad, 136 N. C., 517: “When a servant quits sight of the object for which he is employed and, without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for his acts.” The subject has been so recently discussed by all of the members of this' Court, and all of our own and many other authorities cited, in Stewart v. Lumber Co., 146 N. C., 47, that no good-results would-come from a repetition of what was there written. While the writer of this opinion, upon the verdict of the jury in that case, dissented from some of the views expressed in the prevailing opinion, he does not understand that the decision in that case brings into question the principle that liability of the master for the torts of the servant is limited to those done in the scope of the employment. The principle upon which the opinion of Mr. Justice Brown rested, concurred in by the Chief Juslice and Mr. Justice ILoke, was that when the master placed in the control of his servant a dangerous instrumentality for the purpose of carrying on his business, the law imposed upon him the duty of prevision and precaution. This view was very strongly stated in the concurring opinion of Mr. Justice ILoke. While the writer differed from the Justices in the application of the principle to the instrumentality used in that case, he concedes that the principle is sustained both by reason and authority, and regards the question as settled, in the future cases coming before the Court, by that decision. Applying the principle to the record in this appeal, we find that his Honor, without objection by plaintiff, submitted two issues — the first, directed to the allegation that plaintiff was injured by the reckless and wanton conduct of defendant’s agent, and, second, whether at the time the assault was committed the agent was acting in the line of his duty, etc. It is true that the first ¿ssue concluded with the words “as alleged in the complaint.” When we refer to' the complaint we find that plaintiff sets out the transaction in *477detail and in several aspects. We think that, read in the light of his Honor’s instruction and the submission of the second issue, the finding by the jury upon the first issue referred to the manner in which the assault was committed — that is, recklessly and wantonly. In stating the contentions of the parties his Plonor calls attention to the testimony of the plaintiff and the contention of "defendant, that plaintiff was shot “at some other time and .place, and was not shot by any agent of the defendant company.” He concludes this part of' the'charge by saying that the burden is upon plaintiff to satisfy the jury that “what he says about it is true.” His Honor then defines a wanton, reckless act, saying: “You will notice that this issue presents to you the question as to whether this was a wanton act, and I undertake to tell you what, in the eye of the law, a wanton act is. If, under the instructions I have given you, gentlemen, your answer should be No,’ it will not be necessary for you to answer the second and third issues.” We quote the charge to show that the only question presented to the jury upon. the first issue was whether the flagman shot plaintiff in a reckless and wanton manner. His Honor recognized the fact that plaintiff must not only establish the allegation that defendant’s servant assaulted him, but must go further and show that the wanton, reckless assault was committed by the employee while acting in the scope of his employment and line of duty., The second issue was therefore consistent with the finding upon the first and necessary to establish a complete cause of action. While the plaintiff’s evidence was uncontradicted, it was the province of the jury to draw the inference whether the employee was acting in the scope of the employment. “The inquiry as to the scope of the servant’s employment being for the jury (unless the act is manifestly out of the course of the servant’s employment, where a nonsuit is proper), the reported cases turn, in nearly every instance, either on the validity of the finding or on the question whether there is evidence for the jury.” Beven Neg., 584. The question involved in the second issue might have been tried and determined on the first if his Honor had seen proper to do so. This was done in Pierce’s case, 124 N. C., 83, where the court charged the jury that if they found that the injury was inflicted *478by the servant, in the course of his employment, to find the issue for the plaintiff. The plaintiff did not except to the submission of the second issue to the jury or the instruction of the court. The question is therefore not presented whether, as a matter of law, his Honor should have held that the servant was acting in the full scope of his employment. We have been unfortunate if we have not been able to make ourselves understood in this case. We do not hold, nor is there any word in the opinion to justify the suggestion to the contrary, that corporations or natural persons are privileged to shoot people. No such' question is raised by any exception in the record, nor was it suggested upon the argument. We simply hold that when, without objection or texception, an issue is found by the jury that' the defendant’s servant was not acting within the scope of the employment when he committed the assault, the employer is not liable. This is elementary, and the' courts, “without variableness or shadow of turning,” have uniformly so held.
In Palmer v. Railroad; 131 N. C., 250, the opinion concludes with the words, “The employee must have been acting at the time within the scope of his employment on the defendant’s car.” The jury — not the court — found that in this case he was not so acting. We are unable to perceive how we can, in the face of this finding, without a single exception by the plaintiff, do otherwise. No motion was made to set the verdict aside. This disposition of the appeal renders it unnecessary to consider the charge in regard to the character and measure of damages which could be awarded. The judgment must be reversed, with direction to enter judgment that defendant go without day, etc.
Reversed.