Scrivner v. Boise Payette Lumber Co. , 46 Idaho 334 ( 1928 )

I am of the opinion that the judgment should be affirmed.

It is said in 1 Thompson, Neg., sec. 532, that:

" . . . . a master who employs a dangerous agency upon his premises, or in the prosecution of his business, and commits such agency to his servants, thereby commits to them his own obligation of using care in respect to them to the end that third persons be not injured by them; and he is responsible for the negligence of his servants in discharging this obligation, although they may have been guilty of the act of negligence, for the sole purpose of accomplishing some object of their own outside of the scope of their employment."

See, also, 6 Labatt, Master Servant, 7646; 2 Cooley on Torts, 3d ed., 1033, 1038; 1 Thompson, Neg., sec. 523.

In the Currie case, which the majority accepts as stating the correct rule, the court said:

"The fact that the servant, in pursuing his own business or pleasure, neglects, also, to perform some duty which rests upon the master, may make the master responsible if injury fall upon another as the consequence of that neglect; but that is a very different proposition from that maintained by plaintiff, asserting liability for an injury resulting, not from the mere neglect, but from the personal positive wrong of the servant."

This language is decisive that the master is only exempt from liability for injuries resulting from the entrustment of a dangerous instrumentality to a servant when the servant wilfully commits the act causing the injury. The record is devoid of any evidence that Downs intended to fire the gun and, on the contrary, he testified that the shooting was "an accident." It appears to me, therefore, that in reaching their conclusion the majority have failed to distinguish between a wilful act and a negligent act, or, in other words, whether the servant has departed from his employment or has neglected a duty in the line of his employment. In the first instance the master is not liable and in the second he is. (Riordan v. Gas Consumers' Assn., 4 Cal. App. 639,88 P. 509; Euting v. Chicago etc. Co., 116 Wis. 13, 96 Am. St. 936, 92 N.W. 358, 60 L.R.A. 158; Pacific etc. Co.v. Bank of Palo Alto, 109 Fed. 375, 48 C.C.A. 419, 54 L.R.A. 715.) The shooting of Scrivner, being "an accident," was not the wilful act of Downs; the injury resulted from Downs' failure to use proper care in the handling of a dangerous instrumentality, rather than his personal positive wrong.

The trial court properly refused the instruction the majority holds should have been given. It fails to recognize the liability of the master when the servant (not in the performance of a wilful act of his own) occasions injury to another by neglecting to perform a duty resting upon the master.