Ashcraft v. Tucker

• Decision Date: 07 May 1923
• Docket Number: 10374.
• Citation: 73 Colo. 363,215 P. 877
• Parties: ASHCRAFT et al. v. TUCKER.
• Court: Colorado Supreme Court

215 P. 877

73 Colo. 363

ASHCRAFT et al. v. TUCKER.

No. 10374.

Supreme Court of Colorado

May 7, 1923

Rehearing Denied June 4, 1923.

Department 3.

Error to District Court, City and County of Denver; Warren A Haggott, Judge.

Action by W. L. Tucker against Stanley B. Ashcraft and another. Judgment for plaintiff, and defendants bring error.

Affirmed in part, and reversed in part.

Bert Martin, of Denver, for plaintiffs in error.

Deweese Wheeler & Ogle, of Denver, for defendant in error.

TELLER C.J.

The defendant in error was plaintiff in an action against the plaintiffs in error for the conversion of a quantity of wheat alleged to have been stored with them. He had judgment for the value of the wheat, and the defendants were committed to jail for 90 days, unless the said judgment were paid.

The parties will be designated here as in the court below.

Defendant Audie Ashcraft filed an answer containing a general denial and a so-called separate defense, in which he set up that he was a mere employee of Stanley B. Ashcraft, who was doing business under the name and style of the Stanley B. Ashcraft Grain Company.

The wheat in question was stored in an elevator at Merino, Colo owned by Stanley B. Ashcraft, of which Audie Ashcraft was in charge as the servant of Stanley B. Ashcraft. That Audie Ashcraft was a mere employee of his brother Stanley, and not interested in the business, was testified to by both brothers, and contradicted by no one; yet the court instructed the jury that----

'The defendants in their answer and by their testimony admitted that they received the wheat in question.'

This statement is twice repeated in the instructions, and the jury was told that if Audie Ashcraft 'upon the advice or order of Stanley B. Ashcraft delivered the said wheat to some other person than William L. Tucker, the plaintiff, then your verdict should be for the plaintiff.'

Audie Ashcraft, by his answer, denied the receipt of any wheat, and, as above stated, the uncontradicted evidence shows that he was a mere employee of his brother. Under that state of the evidence, he could not be made responsible for a conversion of the wheat unless it be proved that he was a party to its conversion, and a wrongdoer. The instruction mentioned made him liable for a delivery of the wheat to any one other than the plaintiff, even though he had no knowledge that the wheat was wrongfully delivered. This is contrary to the wellsettled law. A servant who innocently obeys the orders of his master, without knowledge that his act is wrongful, is not liable to the person injured. 26 Cyc. p. 1544.

In Leuthold v. Fairchild, 35 Minn. 99, 27 N.W. 503, 28 N.W. 218, it is said:

'An agent or servant who, acting solely for his master or principal, and by his direction, and without knowing of any wrong, or being guilty of gross negligence in not knowing of it, disposes of, or assists the master in disposing of, property which the latter has no right to dispose of, is not thereby

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