Exposition Cotton Mills v. Sanders

Evans, P. J.

(After stating the foregoing facts.) The petition is not clear that the servant of the defendant was also an officer of the law. He is referred to as a policeman, and also as having taken the plaintiff up the street to be delivered to a police patrol. We think it is fairly inferable from these allegations that the defendant’s servant was also a special officer of the law, detailed for service upon the defendant’s premises. A servant may also be a special officer of the law, and the latter fact does not relieve the master from liability for his acts within the scope of his authority as servant. If he commits a tort in the discharge of duties owing to the master, the latter will be liable for his servant’s tort. If the servant commits a tort as a police officer, the master will not be liable, unless it was done at his direction. Pounds v. Central of Georgia Railway Company, 142 Ga. 415 ( 83 S. E. 96 ). The petition alleges that it was a part of the duties of the servant to look after the defendant’s property and “to police |he premises and tenant-houses in which the defendant’s employees lived, and to keep order on said premises, and to arrest persons violating the law or injuring any property of defendant or creating any disorder about the mill property.” This allegation contains a specific charge that the servant was authorized by the master to arrest persons violating the law, injuring the master’s property, or creating any disorder upon the property. Hnder the terms of an employment of this kind the servant necessarily must be the judge as to whether any person is creating disorder about the mill. The plaintiff was in an intoxicated condition, and, although he disclaims that he was creating any disturbance, if the servant mistakenly interpreted his intoxicated condition while sitting on the steps of the defendant’s tenant-house as a violation of law, or as an act of disorder, and arrested him in pursuance of his general duties as servant of the defendant, the latter will be liable. Dickson v. Waldron, 135 Ind. 507 ( 34 N. E. 506 , 35 N. E. 1 , 24 L. R. A. 483, 41 Am. St. R. 440 ). The rule is clear that a master is liable for torts committed .by his servants in the prosecution and within the scope of his business,-whether the same be by negligence or voluntary. Civil Code (1910), § 4413. We think the allegation sufficiently charges that the servant, in arresting the intoxicated plaintiff on the premises of his employer, was in the performance of his duties as alleged in the petition. It dogs not appear from the peti *596 tion that any authority, State or municipal, exercised control over the acts of the servant; and in view of the positive allegation that it was his duty under his employment to exercise the power of arrest, and that such was within the scope of his employment, we think that it was not improper to overrule the general demurrer.

Judgment affirmed.

All the Justices concur.