Seybold v. Eisle

• Decision Date: 14 February 1912
• Citation: 134 N.W. 578,154 Iowa 128
• Parties: SEYBOLD v. EISLE.
• Court: Iowa Supreme Court

154 Iowa 128

134 N.W. 578

SEYBOLD

v.EISLE.

Supreme Court of Iowa.

Feb. 14, 1912.

Appeal from District Court, Monona County; Wm. Hutchinson, Judge.

Action at law to recover damages caused by a fire set out by defendant's agents. Trial to a jury, directed verdict for defendant, and plaintiff appeals. Reversed and remanded.Miles W. Newby, for appellant.

J. W. Anderson, for appellee.

DEEMER, J.

In the latter part of September of the year 1909 defendant entered into a contract with one Craven to do some plowing for the latter upon his farm in Monona county. The plowing was to be done with a gasoline engine plow, and for so much per acre. To assist in running the plow and engine, defendant employed two men, one named Butcher and the other named Nelson. These men were given charge of the engine and plow, and directed to do the work. The field in which they were to work was covered with tall grass and weeds which had grown up because of lack of cultivation during previous years, and the subject of burning this grass came up between defendant and Craven the day the men were set to work. The exact nature of the conversation had at this time we shall refer to later. After this talk, several furrows were plowed on the south side of the field as a fireguard. The men employed by defendant were left in charge of the engine and plow, and they proceeded with the plowing for a day or two, when the man in charge of the engine, to wit, Butcher, for some purpose not made clear from the testimony, stopped the machine, went a short distance from it, and set fire to the grass and weeds, near the south side and west end of the field, ran the engine to the north of the fire, left it, and he, with his companion went to a nearby town. There was a high wind blowing from the northwest, and this carried the fire to the south and east, where it escaped from the field which was being plowed, passed on to plaintiff's land, and finally set fire to some stacks of hay which were totally destroyed. This action was brought to recover damages for the destruction of the hay. After all the testimony was adduced, the trial court, upon motion, directed a verdict for defendant, and plaintiff appeals.

[1] It is admitted that defendant was an independent contractor, and that Craven, the owner of the land, is not responsible for the damages done. It is also conceded that the man who set out the fire and the men in charge of the engine and plow were defendant's agents and servants, and that these agents and servants were negligent in setting out the fire, or that a jury would have been warranted in finding them negligent. It is also admitted that there is no testimony showing that defendant expressly directed his servants to set out the fire. It is apparent, then, that the only question in the case is this, Was there enough testimony to take the case to the jury upon the theory that these servants had implied authority to set out the fire, or that the setting out of the fire was fairly within the scope of their employment?

The general rule with reference to the liability of the master for the acts of his servant is well understood, but its application to concrete cases has been difficult. The general rule as stated in Lewis v. Schultz, 98 Iowa, 341, 67 N. W. 266, is as follows: “If the servant was acting in the course of his employment in clearing up and leveling off the meadow, and while so doing committed the wrong complained of, the master is liable, although the servant may have disobeyed the master's instructions with reference to setting out fire. It is sufficient to make the master responsible if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment, and this, although the servant in doing it departed from the instructions of his master (Mechem, Ag. § 734); or, as stated by Judge Cooley in his work on Torts (2d Ed.) p. 63: ‘It is, in general, sufficient to make the master responsible that he gave to the servant an authority, or made it his duty, to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment.’ ” Again in Healy v. Johnson, 127 Iowa, 226, 103 N. W. 94, we said: “The doctrine of respondeat superior is not limited to the acts of the servant done with the express or implied authority of the master, but extends to all acts of the servant done in discharge of the business intrusted to him, even though done in violation of his instructions. See authorities collected in 20 Am. & Eng. Enc. of Law (2d Ed.) 167.” In Morier v. St. Paul R. R., 31 Minn. 351, 17 N. W. 952, 47 Am. Rep. 793, the court of that state announced the rule as follows: “Beyond the scope of his employment, the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him, and does not happen in the course of his employment; and, in determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was at the time when the injury was inflicted acting for himself, and his own master pro tempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities.” In Turberville v. Stamp, Lord Raym. 264, 1 Salk. 13, the defendant's servants so negligently kept a fire lighted in his field that it extended to and consumed the heath of the plaintiff. The defendant was held liable to an action for the injury, and Lord Holt observed: “If the defendant's servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire, for it shall be intended that the servant had authority from his master; it being for his master's benefit.”

In Philadelphia & R. R. R. Co. v. Derby, 14 How. 468, 14 L. Ed. 502, the Supreme Court of the United States said: “The rule of ‘respondeat superior,’ or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment. See Story on Agency, § 452; Smith on Master and Servant, 152. There may be found in some of the numerous cases reported on this subject, dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they depended on the question whether the servant at the time he did the act complained of was acting in the course of his employment; or, in other words, whether he was or was not at the time in the relation of servant to the defendant. The case of Sleath v. Wilson, 9 Carr & P. 607, states the law in such cases distinctly and correctly. In that case a servant, having his master's carriage and horses in his possession and control, was directed to take them to a certain place; but, instead of doing so, he went in another direction to deliver a parcel of his own, and, returning, drove against an old woman and injured her. Here the master was held liable for the act of the servant, though at the time he committed the offense he was acting in disregard of his master's orders, because the master had intrusted the carriage to his control and care, and in driving it he was acting in the course of his employment. Mr. Justice Erskine remarks in this case: ‘It is quite clear that if a servant, without his master's knowledge, takes his master's carriage out of the coach house, and with it commits an injury, the master is not answerable, and on this ground that the master has not intrusted the servant with the carriage; but, whenever the master has intrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders, and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law. The master in such a case will be liable, and the ground is that he has put it in the servant's power to mismanage the carriage by intrusting him with it.’ ”

Again in Howe v. Newmarch, 12 Allen, 49, the Supreme Court of Massachusetts announced this rule: “And in an action of tort in the nature of an action on the case the master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of executing his orders, or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable. But if the act be done in the execution of...