
    William H. H. Smith, and another v. Edward Webster and another.
    
      Statute Construed: Trespass. The statute (Sess. L. 1861, p. 178) allowing suits for trespass on lands in one county to be brought against defendants not residing there, in any county where they may be found, applies as well to persons by whose authorized agents and servants such trespasp may have been committed as to the persons manually committing it. And trespass is the proper form of action.
    
      Master and Servant. A master may be liable for the trespasses of his servant done honestly in the course of his employment. It is his duty when he sets them at work cutting timber, to take reasonable ■ precautions to prevent ■them from ignorantly trespassing on neighboring proprietors; and he is responsible for their trespasses committed under the directions of his own overseer, as if he had given them himself. But if they act willfully and without authority, other considerations will sometimes need to be regarded.
    
      Heard July 7.
    
    
      Decided July 12.
    
    Error to Jackson Circuit.
    This was an action of trespass brought by William BL H. Smith and Eugene Smith, against Edward Webster and Benjamin E. Courter, in the circuit court for Jackson county, for entering upon plaintiffs’ lands in Saginaw county, and cutting, and carrying away hemlock and pine-trees. The judgment below was for defendants, and plaintiffs-bring the case, to this court by writ of error.
    
      
      Johnson & Grane, for plaintiffs in error.
    
      Gonely & Sharp, for defendants in error.
   Campbell, Ch. J.

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 that their acts are his acts, and that he is constructively present at them all. There are many cases of willful misconduct for which an employer will not be liable, because, in such cases, the wrong-doers may be regarded as having renounced his service to that extent. Yet even for willful misconduct, theré are some instances of liability, where the employee has furnished peculiar means whereby the employee is enabled to do the mischief. This doctrine has sometimes been applied to the misconduct of the servants of carriers, and the deputies of officials. But where the act is not willful, and is done in the regular course of the employment, there is quite generally a distinct liability, resting on the grounds of an implied agency. The employer, who leaves to his subordinates a discretion which they abuse, is responsible as if he had approved their action. And when, as in this case, his agent or overseer sets, or allows, his men to work on other men’s lands, the agency covers the trespass. There is no distinction in principle, between an express and an- implied direction to the men to work where the overseer instructs or permits them. They are to all intents and purposes working under orders in either case, unless they act wilfully. Here they worked with the full knowledge of the overseer.

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. The statutes, allowing suits to be brought in other counties than those where trees are cut (Sess. L. 1861, p. 178), were directly aimed at non-resident employers, and all of them provide for trespass and not for case. We do not conceive that there is any well settled principle which conflicts with this policy, and even if it were plainly otherwise at common law, there is no mistaking the policy of the statutes, which would be rendered nugatory by any construction that would exempt absent employers from being sued in form of trespass.

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.

The other Justices concurred.  