Small v. Ball

The opinion of the court was delivered by Pierpoint, Ch. J. It appears from the report of the referee that in 1869 one Holden was the owner of lot No. 10 in Stratton, and the plaintiff was the owner of lot No. 9 adjoining ; that Holden sold a quantity of ash timber standing on No. 10 to said F. P. Ball, to be cut and taken off by Ball. After the sale of said timber, Holden sold lot 10 to one Foot, reserving Ball’s right to the said timber. Said F. P. Ball then made an arrangement with his brother Orick to cut and draw out said timber for him and split it, preparatory to its being made into scythe snaths, advising him, Orick, at the same time to get Foot to cut and draw out the timber, so as to avoid any difficulty that might otherwise arise from breaking down and injuring other timber standing on the land. Orick made the arrangement with Foot, who proceeded to cut the timber for the defendants. At this time, neither of the parties knew where the line between lots 9 and 10 was — in fact, it was in [492] dispute. Iu cutting this timber for the defendants, Foot ignorantly cut a number of ash trees that were standing on the plaintiff’s land, and drew them out for the defendants, who received and used them, supposing them to be a part of F. P. Ball’s purchase; and it is for this trespass that this action is brought. That Foot would be liable, is not questioned ; but these defendants insist that they are not liable in this action for the trespass committed by Foot. From the facts reported, we think that it is quite manifest that in cutting the timber, Foot acted simply as the agent or servant of the defendants. He had no interest in the timber, and no right or authority to cut or interfere with it, except such as he derived from the employment by the defendants ; and stood in the same relation to the timber, and the defendants, that he would have stood in, if the timber had been standing on another man’s land. The defendants did not know where the lines of the lot were, but supposed Foot did ; and, instead of pointing out the timber or the line, to Foot, they left it to him to determine ; and they are as much responsible for Foot’s mistake in the matter, as though they had made it themselves. Foot was employed by Orick Ball upon the suggestion of F. P. Ball, and understood that he was cutting and getting out F. P. Ball’s timber, and in doing what he did, he was acting simply as the servant of the defendants, and was acting strictly within the scope of his employment. When cutting the trees in question, he supposed he was cutting F. P. Ball’s trees, and cut them as the servant of the defendants. He did not willfully go outside of his employment to do an unlawful act. We think this case comes strictly within the principle recognized by this court in May v. Bliss, 22 Vt. 477, and Andrus v. Howard, 36 Vt. 248. This principle is not at variance with the case of Claris v. Vt. & Canada R. R. Co. relied upon by defendants. In that case, the act complained of was not done by the employes in the course of their employment, but was entirely outside of it, and off the line of the road on which they were employed, and the act of leaving down the bars of Clark was when they were going across Clark’s field for water for their families, and to [493] drink — a matter that had no direct connection with the work they were employed to perform. We think there was no error in admitting the testimony of Styles. The pro-forma judgment of the county court is reversed, and judgment for the plaintiff for the value of the timber cut, as found by the referee, with interest and cost.