Johnson v. Barber

¶1The Opinion of the Court' was delivered by

¶2The Court properly qualified the first, second, and sixth instructions. The instructions, as demanded, assumed that the relation of master and servant existed between the defendants. The modification confined the instructions to such a state of case.

¶3No error was committed in adding the qualification to the third instruction. The principal is- liable to third persons for the frauds, forts, and negligences of the agent, even though the conduct of the agent is without his participation or consent, provided the act is dóne in the course of the employment, and is not a wilful departure from it. Story on Agency, § 452 et seq; Bush v. Steinman, 1 Bosanquet & Puller, 404; Wright v. Wilcox, 19 Wend. 343; Foster v. Bank, 17 Mass. 479. If one of the defendants, while engaged in' the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely, with a view to benefit or protect the interests of the employer, the latter would be liable for the consequences; but if he set out the fire from motives of malice or wantonness, the principal would not be liable, for that would be an abandonment of the business of the agency.- The instruction, as modified by the Court, stated the law correctly.

¶4The seventh instruction was clearly wrong. If the act complained of was illegal, the fact that one of the defendants committed it under the direction of the other, did not shield him from responsibility, but both were equally liable te the party injured, as well the one who did the act as the one who procured it to be done.- All concerned in the commission of an unlawful act are responsible for the conseqnonces. Admit the principle asserted by this instruction, and every person charged with the commission of an act prohibited by law could excuse himself by showing that he acted in obedience to .the command or under the direction of another. Such a doctrine would be subversive of private rights, and detrimental to the public interests. f¡

¶5The eighth íhs'trtíctiori was erroneous. It asserts an unqualified right on the part of the defendants to set fire to the prairie on their own land. This position is not correct. The 158th sebtion of the Criminal Code prohibits a person from setting, fire to the woods, prairies or other grounds in the inhabited parts of the State between the first of December and March, and during the rest of the year, except for the necessary preservation of his farm or inclosure- from accident by fire,- and then only upon giving his neighbors two days’ notice of his intention- to do so. If the defendants claimed to be within the exception, the instruction should have been based on the hypothesis that such a state of facts appeared in the evidence. The instruction was1 erroneous in another respect. Assuming that the defendants had the right-to-set fire to-the prairie, the instruction would relieve them from all liability for the consequences unless the plaintiff should show that the injury was occasioned by their subsequent negligence. The law is otherwise. If the defendants were authorised by the provisions of the Statute to set out the fire, they were still bound to use every reasonable precaution to prevent injurious results to others. The plaintiff was only required to prove that the defendants set out the fire that caused the injury. It rested with the defendants to show the excuse and justification if any existed. Burton v. Mc Clellan, 2 Scam. 434.

¶6The ninth instruction was properly refused. The grass was severed from the freehold, and became personal property 5 and the plaintiff, to recover damages for- its destruction, was not bound to show title to the land on which it was cut.

¶7The judgment of the Circuit Court is' affirmed with costs-

¶8Judgment affirmed,