Ada-Konawa Bridge Co. v. Cargo ( 1932 )

I cannot agree with the majority opinion in this case. The duty of George Martin was to collect the tolls and deposit them in the bank. This was the extent and scope of his authority. Pete Martin, who fired the shot, was not on the pay roll of the company in any capacity and was never paid by the company, nor recognized by it as having any authority to collect tolls temporarily in the absence of his father, George Martin. No bill was ever presented to or paid by the company for any such services performed by Pete Martin on the occasion in question. George Martin, the father, was temporarily away from the bridge, and, without the knowledge or consent of the company, had his son, Pete, collect tolls during his absence.

I think the facts in this case bring it within the rule announced by this court in the case of Rawley v. Commonwealth Cotton Oil Co., 88 Okla. 29, 211 P. 74, where it is said:

"The mere employment of a watchman to guard property and keep away trespassers does not involve authority to shoot trespassers. * * *"

The defendant had no knowledge whatever that Pete Martin was collecting the tolls. I see no authority in the record for George Martin to delegate such authority to him. Conceding there was such authority, the record certainly does not present a case where there can be any authority given to shoot an individual for failure to pay the toll. We might assume that, when the plaintiff went upon the bridge without first having paid the toll, he was a trespasser. He, in fact, had no right to cross the bridge without paying the toll, but, if he did so, certainly this record does not present a case where the defendant in any way whatsoever gave Pete Martin authority to shoot plaintiff.

In the body of the opinion in the Rawley Case, supra, this court said:

"We are fully convinced that no liability has been shown. In the first place, considering the rights and liabilities of the parties from the standpoint of master and servant, an essential ingredient of liability is lacking, viz., that the shooting does not appear to have been within the scope of the boys' employment, even assuming that they had authority from the corporation or their fathers as officers of the corporation to collect ten cents from the injured person for the privilege of fishing in the pond."

The rule is clearly announced that, where the servant is authorized to collect a fee for the privilege of fishing in a pond, it does not authorize the servant to shoot a person who refuses to pay the fee. In the case at bar, conceding that Pete Martin was the servant of defendant, and that he had the right to collect the fee for crossing the bridge, certainly, under the rule announced above he did not have the right to shoot a person who crossed the bridge without paying the fee.

As I view the evidence, plaintiff has failed to establish a case against the defendant.

KORNEGAY, J., concurs in this dissent.

Note. — See under (4, 5) annotation in L. R. A. 1918F, 721; 21 R. C. L. 861; R. C. L. Perm. Supp. p. 5119. (7) annotation in 70 L. R. A. 733; 18 R. C. L. 776, 777; R. C. L. Perm. Supp. p. 4503; R. C. L. Pocket Part, title "Master and Servant," § 236.