Walker v. Johnson

• Decision Date: 18 July 1881
• Parties: WALKER AND OTHERS v JOHNSON
• Court: Minnesota Supreme Court

28 Minn. 147

9 N.W. 632

WALKER AND OTHERSvJOHNSON

Supreme Court of Minnesota.

Filed July 18, 1881.

Appeal from municipal court, city of Stillwater.

Gregory & Comfort, for appellant.

McCluer & Marsh, for respondents.

GILFILLAN, C. J.

Action for converting a wagon and a quantity of hay. The answer sets up as a counter claim a cause of action for the conversion by plaintiffs of a quantity of hay belonging to defendants. The plaintiffs replied, putting in issue the facts alleged as a counter claim. On the trial plaintiffs had a verdict and judgment. As there must be a new trial, we will notice but three of the errors alleged, as the others may not be repeated on the trial. As to the conversion of the wagon the testimony was that a servant of defendant, engaged in hauling a load of supplies to defendant's logging camp, broke the wagon he was using, and to enable him to do the hauling, took part of plaintiffs' wagon, and the part was not returned. The servant did not act from any malice or purpose to injure plaintiffs, but acted solely with a view to serve the interests of his master, and accomplish what he had been set to do for him. It is often difficult, where a servant, in doing his master's business, commits a trespass upon the property of another without express authority from the master, to determine whether the master is liable for the trespass.

The general rule derived from an examination of authorities is stated in Wood's Law of Master and Servant, 595, thus: “If the act of the servant was necessary to accomplish the purpose of his employment, and was intended for that purpose, however ill-advised or improper, then it was implied in the employment and the master is liable.” This rule seems to us correct as far as it goes. But it may be suggested, though we do not decide, that the master's liability will not depend on the existence of actual necessity to do the act in order to accomplish the purpose of the employment, if the servant, in the exercise in good faith of the judgment and discretion ordinarily expected of a servant in doing his master's business, deems it necessary, and so does the act in good faith, not for himself, but for his master, and to accomplish his master's business in which he is employed. There was some evidence that by the removal of the part of the wagon the remainder was rendered valueless. As to this, the court instructed the jury in effect that if taking the part rendered the wagon valueless for the use for which it was intended, the plaintifis are...