Opinion
Decided December, 1882.
An employer is not liable for an act of his servant done in violation of orders, beyond the scopes of his employment, and without fault on the part of the employer.
CASE. Facts found by a referee. The defendant had a number of men employed with an overseer in clearing a piece of ground adjoining the plaintiff's field. under orders to set no fire unless the plaintiff was present. In the defendant's absence, and without his or the overseer's knowledge, one of the men intentionally started a fire which spread to the plaintiff's field. Setting the fire under the circumstances was a negligent act.
A. S. Twitchell, for the plaintiff, cited Cleghorn v. N. Y. c. R. Co., 56 N.Y. 41; Robinson v. Webb, 11 Bush 464; Johnson v. Bruner, 61 Pa. St. 58; Pickens v. Diecker, 21 Ohio St. 212; Smith v. Webster, 23 Mich. 298; Hays v. Millar, 77 Pa. St. 238; Southwick v. Estes, 7 Cush. 385; Levi v. Brooks, 121 Mass. 501; P. c. R. Co. v. Derby, 14 How. 468; Snyder v. H.c. R. Co., 60 Mo. 413; McGlothlin v. Madden, 16 Kan. 466; Cosgrove v. Ogden, 49 N.Y. 255; Peck v. N. Y. c. R. Co., 8 Hun 286; Garretzen v. Duenckel, 50 Mo. 104; Ewbank v. Nutting, 7 C. B. 797; Althorf v. Wolfe, 22 N. Y. 355; Randleson v. Murray, 8 A. E. 109; Rapson v. Cubitt, 9 M. W. 710; Booth v. Mister, 7 C. P. 66.
Bingham Aldrich, for the plaintiff, cited Redding v. S.C. R. Co., 3 S.C. 1; Higgins v. T. Co., 46 N. Y; 23, 27; Duggins v. Watson, 15 Ark. 118; Armstrong v. Cooley, 10 Ill. 509; Simons v. Monier, 29 Barb. 419; Sleath v. Wilson, 9 C. P. 607; M'Kenzie v. M'Leod, 10 Bing. 385; Whatman v. Pearson, L. R. 3 C. P. 422.
Ladd Fletcher, for the defendant, cited Wilson v. Peverly, 2 N.H. 548; M'Manus v. Crickett, 1 East 106; Lamb v. Palk, 9 C. P. 629; Mitchell v. Crassweller, 13 C. B. 237; Shearm. Red. Neg., ss. 63-65; Whatman v. Pearson, L. R. 3 C. P. 422; Bolingbroke v. Swindon, L. R. 9 C. P. 575; Gordon v. Rolt, 4 Exch. 365; Church v. Mansfield, 20 Conn. 284; M'Kenzie v. M'Leod, 10 Bing. 385; Limpus v. Omnibus Co., 1 H. C. 526; Whar. Neg., s. 171.
The act of setting the fire was not within the scope of the workman's employment, and was not the defendant's act. Wilson v. Peverly, 2 N.H. 548.
Judgment for the defendant.
CLARK, J., did not sit: the others concurred.