106 S.W.2d 173 | Ark. | 1937
John W. Gibson and C. H. Gibson, Lester Perschall, Paul Stormant, J. J. Martin, W. G. *59 Wipperman and August Dorn instituted separate actions in the Pope circuit court against the appellant for damages to property occasioned by fire. The allegation as to negligence is the same in all the cases. It was alleged that on or about September 7, 1936, the appellant, a corporation organized and authorized to do business in Arkansas, by and through its agents, servants and employees, was engaged in building a bridge with dirt approaches thereto, and across what is known as Illinois River, in Pope county, Arkansas, and was engaged in gathering rock from the lands owned by appellees and on said date, while the appellant, agents, servants and employees were engaged, and while acting within the scope of their employment, and in the performance of their duty, negligently and carelessly ignited and set fire to and permitted to be ignited and set fire to the grass, weeds, trash, timber and debris on lands owned by the appellees, and negligently and carelessly caused and permitted said fire to get beyond the control of appellant, its agents, servants and employees, and caused or permitted said fire to burn across the premises owned by the appellees, burning and destroying meadows, timber and vegetation therefrom, and by burning over said lands, destroying the property described in appellees' complaints. Each complaint described the property claimed to be damaged, and alleged that the property was destroyed by the negligence of appellant, its agents, servant and employees.
The Gibsons sued for $1,000. The other appellees sued for different amounts in damages. Appellant demurred to each of the complaints, which demurrers were overruled, and appellant thereupon filed answers denying all the allegations of the complaints. The cases were then consolidated for trial, and there was a verdict and judgment in the case of Gibsons against the appellant for $500. There was a verdict and judgment in favor of each of the other appellees for different amounts. Motion for new trial was filed and overruled, and the cases are here on appeal.
The appellant insists on reversal first, on the ground that if the fire was set out by one of its employees, said *60 employee was not acting at the time within the scope of his employment, and second, that appellant was not guilty of negligence in permitting the fire to get beyond the control of said appellant, its agents, servants and employees.
The undisputed facts show that appellant, through its employees, was getting rock from the land of appellees, and the appellant, in its brief, states: "In conclusion, appellant earnestly insists that all of the proof introduced shows conclusively that the fire was started by one of its employees' lighting a cigarette. That the lighting of the cigarette was not in the prosecution of the master's business, and that the employee had departed from the prosecution of the master's business and was accomplishing his own personal desires, solely for his own personal satisfaction."
The fire having been set out by one of the employees, the question is whether the master was relieved from liability because this act of the employee was not within the scope of his employment. To support its contention, appellant first calls attention to Rex Oil Corporation v. Crank,
The court further said, in discussing this question: "The difficulty lies in the application thereof, as there is no definite rule by which it can be said that the acts of a servant are within or without the scope of his employment, each case of necessity depending upon its own peculiar facts and circumstances."
All the authorities hold that if the servant commits an act during the time the servant is engaged in the service of the master, although the act itself might have *61 been unauthorized, the master is liable. The act of the servant causing the damage may not only be unauthorized, but positively forbidden, yet if it is done while the servant is engaged in the master's business, the master will be liable.
Attention is next called to the American Railway Express Company v. Mackley,
The next case referred to by appellant, Hough v. Leech,
In the case of Pickens v. Westbrook,
The rule is stated in 18 R.C.L. 795, as follows: "Acts impliedly authorized or such as are within the scope of the employment — that is, wrongs for which the employer may be held accountable — are not susceptible of precise or even very helpful definition by any phrase or short form of expression. Each case must be determined with a view to the surrounding facts and circumstances — the character of the employment and the nature of the wrongful act. Whether the act was or was not such as to be within the employment's scope is ordinarily one of fact for the jury's determination."
"But every departure by the servant from the strict course of his duty, even for a purpose of his own, will *63 not in and of itself be such a departure from his master's business as will relieve the master of liability for the acts of the servant. The servant may at the same time be combining both his own and his master's business, and in such case the master will be liable for his acts." 18 R.C.L. 797.
We said in the case of Healey v. Cockrill,
In the instant case, however, although the fire was set out by one of the employee's smoking, there is no evidence that he, at any time, departed from the business of the master. In this case the master sent his employees onto the land of the appellees to get rock, which he was permitted to do by the appellees. If the master himself had gone on the land of another to get rock and while engaged in getting it set out a fire by smoking or otherwise, he would be liable for the damage caused thereby. He has the right to go on the land to get the rock, but with the obligation that no damage will be done to the landowner in getting the rock. Of course, if he would be liable himself for doing the act complained of here, he would be liable if the act was done by an employee whom he had sent there. He takes the right to go on another's land with the obligation that he will remove the rock without committing damages to the landowner.
Having reached the conclusion that the appellant is liable for setting out the fire, it is not necessary to discuss *64 at length the second proposition. This question was submitted to the jury, under instructions given by the court and not objected to in the argument by appellant. The jury's finding as to the facts are conclusive here, and the appellant does not complain of any instruction given by the court.
We find no error, and the judgment is affirmed.