Where defendant's special officer, empowered to police its yards and prevent any one from stealing freight or damaging property, to look out for suspicious characters and to put out persons who were not in the yards on business, was suddenly seized by two men, who seemed to him to be a couple of intruders that he had expelled on the previous day, and who had threatened him with violence, so that he was excited and lost his head, and shot both assailants, who proved to be acquaintances of the officer, and not the parties he supposed them to be, the right of decedent to recover for the alleged reckless or negligent act of the officer of defendant railway company depended on whether he acted in self-defense only, or in the performance of his duties, having in mind the purpose of protecting his employer's property.1

2. SAME QUESTIONS FOR A Jury.

It could not be decided, as a matter of law, which intent actuated the employee in firing upon the persons who assaulted him; the question was one of fact and should have 'been submitted to the jury.

3. SAME-AUTHORITY TO EJECT-RESPONDEAT SUPERIOR.

Any act done through lack of judgment, discretion, or from infirmity of temper or under the influence of passion, somewhat beyond the strict line of the servant's authority, is chargeable to the master, and the law will not undertake to fix with precision the line that distinguishes the act of the servant from the act of the individual; so that if in the discharge of his duties the employee lost his head and exceeded the force that he was authorized to use, the defendant was liable.

'On master's civil responsibility for the wrongful or negligent act of his servant or agent towards one who has no claim upon the master by reason of a contract incipient or perfected, see note in 27 L. R. A. 161.

4. SAME-EVIDENCE-WITNESSES-SERVANT OF DEFENDANT.

A servant and agent of defendant railroad company, called for cross-examination under Act No. 307, Pub. Acts 1909, might be contradicted by the plaintiff, as if defendant had called the witness in its own behalf.

Error to Wayne; Hosmer, J. Submitted April 14, 1915. (Docket No. 31.) Decided December 22, 1915.

Case by Esther M. Cook, as administratrix of the estate of Frank J. Cook, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff's intestate. Judgment for defendant on a directed verdict. Plaintiff brings error. Reversed

Frederic T. Harward (John J. Gafill, of counsel), for appellant.

J. W. Dohany (Frank E. Robson and Henry Russel, of counsel), for appellee.

BIRD, J. In the early evening of August 11, 1911, William Burnett shot and killed Frank J. Cook and Daniel Vreeland in the Michigan Central freightyards in West Detroit. Burnett was a special officer or night watchman for the Michigan Central, and Cook and Vreeland were employed in a like capacity for the Lake Shore & Michigan Southern Railway Company, whose yards lie immediately north of and parallel with the Michigan Central yards, in the vicinity of Junction, Campbell, and Livernois avenues. Cook and Vreeland had entered the Michigan Central yards at Campbell avenue and were crossing them to reach their beats in the Lake Shore yards when the shooting occurred. Burnett's excuse for shooting them was that he mistook them for two suspicious characters whom he had driven out of the yards by force on the previous evening. The wife of Cook, as administratrix of her husband's estate, brought this suit against the Michigan

Central to recover for the negligent killing of her intestate.

As there were no eyewitnesses of the shooting save Burnett, he was called by plaintiff for cross-examination under Act No. 307, Pub. Acts 1909. At the close of plaintiff's proofs, the trial court directed a verdict for the defendant, on the ground that it had not been made to appear that Burnett was acting within the scope of his employment at the time of the shooting. It was the claim of the defendant that Burnett's act was one purely of self-defense.

1. To determine whether the trial court was wrong in its position, it will be necessary to consider somewhat in detail the material facts attending the shooting, and also the duties and authority of Burnett. Burnett testified that it was his duty "to look after the yard in general to see that no one molested any of the cars, to see that no one took anything out of the yards, except by proper authority, and to see that no suspicious characters whatever were loafing around in the yards, to find out every person's business who seemed to be suspicious in the yard, and, if they had no business in there, to put them out." He further testified that Mr. Dwyer, his senior officer, who hired him, instructed him that he was to be "special officer in the yard, to patrol the yard, to examine the cars to see whether the seals were broken or not, to see that no one broke into the cars and stole things, and to keep characters or people who had nothing to do with the railroad company off the property; yes, and to look after the railroad property in general." Burnett's version of the affair was that, while he was walking between two rows of freight cars about three feet apart, standing on the yard tracks just south of the main line, these two men came out from the end of a car about six inches ahead of him and took hold of him. That one took hold of his neck and one his arm, and

began to tussle with him. Beyond this he does not make it clear what they attempted to do with him. He further says that they did not try to strike him, nor did they hurt him, nor did they say anything, except, "We have got you now, old Pal;" that, so far as he knew, they carried no firearms; that he thought they were two men whom he had ejected from the yards in a rough manner the night before at nearly the same place; that without giving them any warning or show whatever, he fired. He aimed at their hearts and shot to kill. They were only about three feet away when he fired. He was armed with an automatic Smith & Wesson revolver, capable of shooting five times. It was dark, and he could not distinguish faces. He had met Cook and Vreeland before and knew they were special officers of the Lake Shore. He admitted that he was rattled and "kind of lost his head." He claimed he was acting in self-defense.

That the master is liable for the negligence of a servant while acting as such and within the scope of his employment, is a proposition of law that is recognized by both parties. The variance between counsel arises and the difficulty begins when an attempt is made to apply the rule to the facts of the case. It is contended by plaintiff that at the moment of the shooting Burnett was acting within the scope of his employment. Defendant insists that he was not so acting, but was engaged solely in an act of self-preservation. The test in such cases appears to be: Did Burnett at the time have in mind the furtherance of his master's business? If he did, then the master is liable, whether the act was done negligently or recklessly. If he did not have in mind the furtherance of his master's business, but only his own self-preservation, then the master is not liable. Sharp v. Railroad Co., 184 N. Y. 100 (76 N. E. 923, 6 Am. & Eng. Ann. Cas. 250); Layne v. Railway Co., 66 W. Va. 607 (67 S. E. 1103); Magar v. Hammond,

183 N. Y. 387 (76 N. E. 474, 3 L. R. A. [N. S.] 1038); Fleming v. Knitting Mills, 161 N. C. 436 (77 S. E. 309).

In getting at the viewpoint of Burnett, I think we should assume that the parties killed were the suspicious characters whom he had driven from the yard the previous night. And we must assume that Burnett, in doing what he did was actuated by no malice. He says that certain car seals had been broken and some merchandise taken therefrom, and that he suspected these parties of having done the work, and therefore he forcibly ejected them from the yard. When leaving, they made certain threats against him. They reappeared (as he thought) the second night. They came upon him so suddenly that he had no time to drive them out as he had done on the previous night. He struggled with them for not to exceed 211⁄2 minutes before he fired. During that time did Burnett have in mind to drive them out again, as he had on the previous night? Did he still believe they had evil designs on his master's property? Did he have in mind his duty to his master to care for its property as well as his own self-preservation? And would he have fired on them had it not been for his authority as a special officer and as guardian of his master's property? Or was he unmindful of all these things, and engaged in the struggle solely as an act of self-preservation? These are questions which we cannot answer. They are questions of fact which ought to be determined by a jury. Sharp v. Railroad Co., 184 N. Y. 100 (76 N. E. 923, 6 Am. & Eng. Ann. Cas. 250); Layne v. Railway, 66 W. Va. 607 (67 S. E. 1103); Magar v. Hammond, supra; Fleming v. Knitting Mills, 161 N. C. 436 (77 S. E. 309); Heenrich v. Car Co. (D. C.), 20 Fed 100; Redding v. Railroad Co., 3 S. C. 1 (16 Am. Rep. 681); Winoker v. Warfield, 136 Ga. 742 (71 S. E. 1051); Barden v. Felch, 109 Mass. 154; Rounds v.