It is not within the scope of the authority of a servant who has charge of property of his master, to inflict personal chastisement upon a person who has injured that property, in order to prevent repetition of the injury.
The driver of an ice cart, who strikes a small boy on the head with the handle of an axe, for the purpose of punishing him for breaking the axe, which was the property of the driver's employer and which he had left on the sidewalk while going into a house to deliver ice, is not acting within the scope of his employment in making the assault, and the boy cannot recover from the driver's employer for injuries caused thereby.
LORING, J.
The ground on which the plaintiffs contend that the defendant is liable for Sprague's acts in beating them with the handle of the ice axe is that, from what Sprague said at the time, the jury were warranted in finding that he punished them in whole or in part for the purpose of making it easier for him to deliver ice from the defendant's ice cart in the future, without an assistant and with slight care of the tools, and therefore the case is brought within Howe v. Newmarch, 12 Allen, 49. But in this case Sprague's attack on the boys was an act of punishment inflicted for a past injury to his master's property, and not in doing an act which he had to do if he performed the duty owed by him to his master.
It is not within the scope of the authority of a servant, to whose custody his master's property has been confided, to undertake to secure it from future injury by committing the illegal act of inflicting personal chastisement on persons who have done damage to it in the past.
The case comes within Bowler v. O'Connell, 162 Mass. 319, Driscoll v. Scanlon, 165 Mass. 348, and in some aspects is like Porter v. Chicago, Rock Island Pacific Railway, 41 Iowa, 358, and Candiff v. Louisville, New Orleans Texas Railway, 42 La. Ann. 477.
Exceptions overruled.