23 Mich. 298 | Mich. | 1871
Plaintiffs sued defendants in trespass, for tbe destruction of trees upon tbeir lands. Tbe alleged trespass was not committed by the defendants in person, but by others in tbeir employ, who were engaged in cutting trees and gathering bark for defendants on tbeir own lands, and went to plaintiffs’ lands, as they claim, by mistake.
Tbe circuit court held that there was no liability in this action, unless tbe trespass was committed by the actual direction of defendants, or was ratified by tbeir assent, or appropriation of tbe property, with knowledge of the trespass. And tbe court refused to charge that any wrongful act or negligence of defendants whatever could subject them to this action.
It was claimed on tbe argument, that tbe persons doing tbe wrong were not, in law, the servants of the defendants, but were in tbe position of independent contractors, for whose acts none but themselves and tbeir immediate employer could be held liable.
Tbe evidence will not allow any such conclusion. The men were employed in the ordinary way as laborers of defendants, to do tbeir work subject entirely to tbeir control and direction. Tbe intermediate agent was an overseer and not a contractor, and be, as well as tbe men under him, was tbe servant of defendants in tbe legal sense of that word, and fully represented them in what be did. Tbe acts complained of were done in tbe regular course of tbeir employment, and not by willful wrong. In such cases tbe master is bound to keep bis servants within tbeir proper bounds, and is responsible if be does not. Tbe. law contemplates
If the offense of the men would be trespass, there is no sense in holding the master exempt from the same kind of responsibility. He is only liable because the law creates a practical identity with his' men, so that he is held to have done what they have done. If the injury to the plaintiff is a direct one, and not an incidental or consequential one, the remedy should be trespass and not case, and there is, we think, no real foundation for any other distinction. Cutting down a tree is an act and not a oonsequence, and whether it is done by the servant of another or by one acting in his own behalf, the injury is precisely the same.
We think the action was properly brought, and that the evidence tended to prove no other relation than that of master and servant.
Judgment must be reversed with costs, and a new trial granted.