Childers v. Southern Pacific Co.

Citations

• 20 N.M. 366
• 149 P. 307

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>.1. A master is liable for tbe wanton or malicious acts of his servant, if they were committed while the servant was acting in the execution of his authority and within the scope of his employment. P. 371</p> <p>2. In general terms it may he said, that an act is within the “course of employment” if (1) it he something fairly and naturally incident to the business, and if (2) it be done while the sei’vant was engaged upon the master’s business and be done, although mistakenly or illadvisedly, with a view to further the master’s interest, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master’s business, and did not arise wholly from ■ some external, independent, and personal motive on the part of the servant to do the act upon his own account.</p> <p>P. 372</p> <p>3. The master is liable for the act of his servant in assaulting and arresting one whom he erroneously believed to be a trespasser, where he had the authority to eject trespassers from the master’s premises, and to arrest them therefor.</p> <p>P. 373</p> <p>4. The form and substance of a reguested instruction must be such that the court may properly charge the jury in the terms of the request, without qualification or modification.</p> <p>P. 375</p> <p>5. In order to obtain a review in the appellate court of instructions given by the trial court of its own motion, the complaining party must, by proper exceptions or objections, point out the alleged vice in the objectionable instruction, so that the lower court will have the opportunity to correct the same, and where this is not done the appellate court will not consider the alleged error.</p> <p>P. 376</p> <p>6. The mere fact that a servant is also a police officer is no defense to an act performed within the scope of his employment for the master, and in the line of his duty to the master.</p> <p>P. 376</p>