Carroll v. Hillendale Golf Club, Inc.

⁵⁴³ Sloan, J., delivered the opinion of the Court. On July 17th, 1927, Robert Ward was a greenskeeper in the employ of the Hillendale Golf Club, Incorporated, the appellee, which had a golf course near Towson in Baltimore County. At the same time the appellant Charles E. Carroll, who sues by his father and next friend, Walter L. Carroll, was a caddy at the golf course. On the day mentioned the appellant and a companion named Herbert Gallagher were in the woods j ust off the sixth tee, hunting for lost golf balls, when, without any apparent reason and to their surprise, they were called to' by Ward, who had a shotgun in his hands, and on account of his threatening attitude the boys ran.

When they had gotten off the club property, on Taylor Avenue, Ward fired a shot, neither of the boys being hit. The} then ran into the woods, where they remained about a. half hour, when they came out on the road, saw Ward, and “started to run back into the woods,” when Ward shot at them again, this time hitting both hoys, the appellant getting •one shot in the right arm. The appellant testified that he and his companion were off the club property when both shots were fired, Ward, when he fired the second time, standing by his car on Taylor Avenue. Ward, who was the only one who testified =as to the nature of his employment, said his duties were “to see that the greens are kept up, fertilized, watered and so forth,” and that included the care of fairways and tees.

He said his duties at the club did not require him to' carry a gun, but that he did need it on the farm adjoining the club property. It appears that he lived on a farm adjacent to the club but in no way connected with it, and that he carried the gun because he “had three hundred dollars worth of hogs killed on the farm three weeks before the accident.” He does not attempt to give any explanation of the shooting of the boys because of any connection they had with the loss of his hogs. His excuse for shooting was, “by the action of the hoys I did take the gun and shoot over them to- scare them off.” He said he had shot the gun for the purpose •of helping to clear the hoys away from the course. There is ⁵⁴⁴ no evidence that his duties at the club required him to carry a gun; in fact he said they did not, and the only reason given was the fact that his hogs had been killed.

He did not get near enough to the boys to recognize them, though the appellant had been a caddy at the club for more than a year. Waa*d was convicted of an assault on the boys in the Circuit Coux*t for Baltimore County. At the conclusion of the plaixxtiff’s case, the defendant offex’ed a prayer for a directed verdict axxd, the same having-been granted, verdict and judgment were entered accordingly; and from the judgment for the appellee this appeal was taken, an exception having been reserved by the appellant to the granting of the prayer. It is this actioxx of the court which makes necessary a review of the evidence.

The question in all such cases as this is whether the agent or employee was at the time of the wrong complained of acting within the scope of his employment or agency. The-rule, as laid down by this court ixx Cate v. Shaum, 51 Md. 299, 308 , is “that the master is responsible for the wrongful acts of his servant, evexx though they be wilful or reckless, if the act done by the servant be within the scope of his employment and in furtherance of his master’s business.” See Evans v. Davidson, 53 Md. 245, 249 ; Barabasz v. Kabat, 86 Md. 23, 33 ; Holler v. Ross, 68 N. J. L. 324, 59 L. R. A. 943; Evers v. Krouse, 70 N. J. L. 653, 66 L. R. A. 592. The appellant, in support of his contention that the assault made by Ward in this case was within the scope of his-employment as greenskeeper for the appellee, and should have been submitted to the jury, relies upon the decisions of this court in Consolidated Ry. Co. v. Pierce, 89 Md. 495, 503 ; Deck v. Balto. & O. R. Co., 100 Md. 168, 182 ; Balto. & O. R. Co. v. Strube, 111 Md. 119, 127 ; Evans v. Davidson, 53 Md. 245 ; Wilson Amusement Co. v. Spangler, 143 Md. 98, 104 ; Jones v. Sherwood Distilling CVo., 150 Md. 24, 38 ; Goldman Stores v. Bugg, 156 Md. 36 ; ixx all of which it is ixx effect stated that the questions of agency and scope of" employment are generally questioxxs for the jury.

Thex*e are-cases, however, in this state and elsewhere, in which, under ⁵⁴⁵ the evidence, the courts have held it to be a matter of law. It cannot be assumed that, merely because an employee commits a tort while in the employ of his master, the act complained of was within the scope of the servant’s employment. The burden is on the plaintiff to prove the fact. Tolchester Imp.

Co. v. Steinmeier, 72 Md. 313, 316 ; Phila., W. & B. R. Co. v. Stumpo, 112 Md. 571, 578 ; Obertoni v. Boston & M. R. R., 186 Mass. 481 , 67 L. R. A. 422; Holler