36 Vt. 248 | Vt. | 1863
The court charged the jury that the defendant’s son in driving off the plaintiff’s cattle in the manner .stated in the bill of exceptions, was so far in the business for which his father sent him, that his father (the defendant) was liable for his acts the same as if he (the defendant) had done them in person.
The master is not liable for the wilful wrong or trespass of the servant, though the act be done while employed in the business of his master. It is not claimed, and there was no evidence tending to show that the act here complained of was the wilful act of the servant. The case shows that the servant supposed the heifer he tried to drive off was one of Cole’s. It was a mistake likely to be made — for young cattle pastured through the season, by their growth, change so much in appearance that they are not readily identified, unless they are either frequently seen, or have some peculiar marks or looks by which they may be'distinguished.
The master is liable for the act of the servant, if the act be done while the servant is employed in the business of the master in the following cases, viz :
1st. If the act is done by the express command of the, master.
2d. If it was the natural and probable result of the orders given to the servant, though not expressly commanded.
3d. If the act was done by the servant in the business of the master which he was directed or expected to do, and he acts in good faith, in the exercise of ordinary care, and neither wilfully nor negligently, but by mistake commits the trespass.
In all these cases trespass lies against the master.
If the servant, while in his master’s business, by negligence
This relieves the case from the only trouble we have felt in regard to it. A question we think might have arisen on the trial, whether the son was not guilty of negligence in driving off the plaintiff’s heifer as one of Cole’s, or the defendant guilty of negligence in sending one to get the heifers who could not identify them. But even if this were so the defendant would still be liable for his son’s act, though at common law only in case. But here, 'as we hold he would be liable in trespass, the fact that the point was not directly presented to the jury is unimportant. The charge as to the son’s being in his father’s business in driving the cattle off' wo think correct. By the directions given to him by his father “ to go and get Cole’s heifers” the son was substantially directed to go to the mountain pasture and if ho could not find them there to search for them in the vicinity. So if he found them with other cattle he was to use his knowledge and judgment in picking out Cole’s heifers. The nature of his errand would require him to do this, and in doing it he was only doing what his father expected of him. Hence we consider that in searching for and selecting the heifers of Cole he was, in the-language of the court below, “ in the business for which his father sent him.” As to the substance of his father’s directions and as to what he did in pursuance of them there appears to have been no ground of controversy; and the court might well treat the facts on that branch of the case as conceded, as all the testimony substantially concurred.
We have no time to review the numerous authorities which counsel have cited and read. They do not seem to be conflicting, but to concur as to the rules of law we have hereinbefore stated. Judgment affirmed.