Askren, J.
This action was brought to recover for the alleged negligence of the defendant corporation in
starting fires on its logged-off land, which spread to land owned by the plaintiff causing damage. From a judgment of nonsuit at the close of plaintiff’s case, this appeal was taken.
The parties own contiguous properties. On June 19, 1925, the respondent secured a permit from the state fire warden’s office to burn forest debris upon 480 acres of its property where it had been conducting logging operations. The permit granted the right to burn from June 20 to June 24. Some time later, the exact date being undisclosed by the evidence, the respondent had a crew of men working upon that part of its premises in close proximity to appellant’s land. They were engaged in putting in a railroad cut for respondent’s use. Donkey engines were used in the operations, and some time after noon a fire broke out as a result of sparks escaping from the engines. The crew was in charge of one Bigler, who immediately put the men to work fighting the fire. In the performance of this work, he started some backfires along the trestles. Bigler then secured matches from the timekeeper, went some distance away and started another fire on the respondent’s property. This point was approximately a mile distant from the place where the cut was being made. The last fire spread rapidly until it reached appellant’s property, causing substantial damage. All of the fires set out were upon respondent’s property, and were covered, so far as the location is concerned, by the permit which was introduced in evidence.
The trial court adopted the view that there was insufficient evidence to warrant the conclusion that Bigler, in setting the last fire, was acting through any authorization of the respondent. It is contended here that his act was not within the scope of his employment. It is said that Bigler was authorized to
construct a railroad cut, and that such work gave him no authority to set out fires on the respondent’s land. To this abstract proposition, assent may readily be given. But the facts in this case do not lend themselves to such a limited view of the situation. While employed in charge of the crew for the purpose of making the cut in question, the operation caused fires to be started on respondent’s property. We think it must be readily conceded that the law will not only imply sufficient authorization, but will require that he endeavor to stamp out the fires so created. Nor does respondent deny such a duty. In putting the fires out, backfires were started for the purpose of controlling the situation. This is a method commonly used. Thus there can be no doubt of Bigler’s authority thus far.
Does the fact that the next fire was started some distance away cancel that implied authority? We think the circumstances must answer that question. There is nothing in the record to indicate that the last fire was started for any ulterior purpose. We must ascribe to men’s acts the natural motives which prompt them to do, or not to do, a given thing. The reasonable inference to be drawn from the setting of the last fire is that it was done in furtherance of the same purpose which prompted Bigler to set the first backfire. It may be that Bigler’s action was not justified under all the surrounding circumstances; he may have been mistaken in his judgment as to the effect of the last fire, but of course these things would not relieve respondent, if the act was performed in the course of doing those things which he would reasonably be expected to do in the course of his employment.
These facts render the instant case readily distinguishable from the cases relied upon by respondent,
notably,
Marlowe v. Bland,
154 N. C. 140, 69 S. E. 752, 47 L. R. A. (N. S.) 1116.
In that case a servant had been instructed to cut and pile cornstalks. Having finished the duty imposed upon him, he decided that he would burn the stalks. The sparks from the fire were blown to another’s property, causing damage for which suit was brought. Eecovery was denied because the servant had, of his own volition, set the fire, his act not being in the course of his employment. Said the court:
“A
correct application of these authorities and the principles upon which they rest to the facts presented, will in our opinion sustain the action of the lower court in ordering a nonsuit. As a general proposition the duty of a hired man is to do what he is told, and in this instance he was directed to do a definite, specific thing, importing no menace to any one, and after completing the work that was given him to do, he goes on of his own motion and does something else — engages in an act which is not infrequently a source of danger to neighbors — and does it under circumstances amounting to a negligent wrong and causing substantial pecuniary injury. Plaintiff did not rely on the inferences which might arise from the fact that his neighbor’s hired man while engaged in clearing off a field, on a windy day, set fire to a pile of cornstalks near the plaintiff’s woodland, from which it might be reasonably inferred that this negligence was within the scope of his employment, but his own proof goes further and shows that the employee had no orders to burn these stalks, nor was he sent with general directions to clear off the field, involving some extent of discretion in his method, as in the citation from "Wood, approved in
Robert’s Case,
supra; but he was directed to do this specific act, and the course and scope of his employment, in this instance, was to do as he was told.”
In that case, there was no original fire started by accident. The fire set by the servant was not done,
nor conld it be inferred that it was done, to protect his master’s property.
A case more in point is
Paraffine Oil Co. v. Berry,
93 S. W. (Tex. Civ. App.) 1089. In that action, a farmer’s pasture had been destroyed by a fire started by another on his own property where a crew was drilling for oil. There was no evidence of authorization, but one of the employees told the plaintiff that they had started the fire. The court observed:
“The master is liable for the acts of his servants within the scope of their employment, done in furtherance of the master’s business, and for the accomplishment of the object for which they were employed, though the particular act was unauthorized and unlawful. While there is no direct evidence going to show that the act of appellant’s servants in setting out the fire was within the scope of their employment, and done in furtherance of its business in which they were engaged, we think the circumstances shown by the evidence tend to establish such fact, and to show that such act was negligent, and caused the damages sued for to appellee’s property.”
The rule announced in Wood, Law of Master and Servant is quoted approvingly in
Seybold v. Eisle,
154 Iowa 128, 134 N. W. 578, as follows:
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Askren, J.
This action was brought to recover for the alleged negligence of the defendant corporation in
starting fires on its logged-off land, which spread to land owned by the plaintiff causing damage. From a judgment of nonsuit at the close of plaintiff’s case, this appeal was taken.
The parties own contiguous properties. On June 19, 1925, the respondent secured a permit from the state fire warden’s office to burn forest debris upon 480 acres of its property where it had been conducting logging operations. The permit granted the right to burn from June 20 to June 24. Some time later, the exact date being undisclosed by the evidence, the respondent had a crew of men working upon that part of its premises in close proximity to appellant’s land. They were engaged in putting in a railroad cut for respondent’s use. Donkey engines were used in the operations, and some time after noon a fire broke out as a result of sparks escaping from the engines. The crew was in charge of one Bigler, who immediately put the men to work fighting the fire. In the performance of this work, he started some backfires along the trestles. Bigler then secured matches from the timekeeper, went some distance away and started another fire on the respondent’s property. This point was approximately a mile distant from the place where the cut was being made. The last fire spread rapidly until it reached appellant’s property, causing substantial damage. All of the fires set out were upon respondent’s property, and were covered, so far as the location is concerned, by the permit which was introduced in evidence.
The trial court adopted the view that there was insufficient evidence to warrant the conclusion that Bigler, in setting the last fire, was acting through any authorization of the respondent. It is contended here that his act was not within the scope of his employment. It is said that Bigler was authorized to
construct a railroad cut, and that such work gave him no authority to set out fires on the respondent’s land. To this abstract proposition, assent may readily be given. But the facts in this case do not lend themselves to such a limited view of the situation. While employed in charge of the crew for the purpose of making the cut in question, the operation caused fires to be started on respondent’s property. We think it must be readily conceded that the law will not only imply sufficient authorization, but will require that he endeavor to stamp out the fires so created. Nor does respondent deny such a duty. In putting the fires out, backfires were started for the purpose of controlling the situation. This is a method commonly used. Thus there can be no doubt of Bigler’s authority thus far.
Does the fact that the next fire was started some distance away cancel that implied authority? We think the circumstances must answer that question. There is nothing in the record to indicate that the last fire was started for any ulterior purpose. We must ascribe to men’s acts the natural motives which prompt them to do, or not to do, a given thing. The reasonable inference to be drawn from the setting of the last fire is that it was done in furtherance of the same purpose which prompted Bigler to set the first backfire. It may be that Bigler’s action was not justified under all the surrounding circumstances; he may have been mistaken in his judgment as to the effect of the last fire, but of course these things would not relieve respondent, if the act was performed in the course of doing those things which he would reasonably be expected to do in the course of his employment.
These facts render the instant case readily distinguishable from the cases relied upon by respondent,
notably,
Marlowe v. Bland,
154 N. C. 140, 69 S. E. 752, 47 L. R. A. (N. S.) 1116.
In that case a servant had been instructed to cut and pile cornstalks. Having finished the duty imposed upon him, he decided that he would burn the stalks. The sparks from the fire were blown to another’s property, causing damage for which suit was brought. Eecovery was denied because the servant had, of his own volition, set the fire, his act not being in the course of his employment. Said the court:
“A
correct application of these authorities and the principles upon which they rest to the facts presented, will in our opinion sustain the action of the lower court in ordering a nonsuit. As a general proposition the duty of a hired man is to do what he is told, and in this instance he was directed to do a definite, specific thing, importing no menace to any one, and after completing the work that was given him to do, he goes on of his own motion and does something else — engages in an act which is not infrequently a source of danger to neighbors — and does it under circumstances amounting to a negligent wrong and causing substantial pecuniary injury. Plaintiff did not rely on the inferences which might arise from the fact that his neighbor’s hired man while engaged in clearing off a field, on a windy day, set fire to a pile of cornstalks near the plaintiff’s woodland, from which it might be reasonably inferred that this negligence was within the scope of his employment, but his own proof goes further and shows that the employee had no orders to burn these stalks, nor was he sent with general directions to clear off the field, involving some extent of discretion in his method, as in the citation from "Wood, approved in
Robert’s Case,
supra; but he was directed to do this specific act, and the course and scope of his employment, in this instance, was to do as he was told.”
In that case, there was no original fire started by accident. The fire set by the servant was not done,
nor conld it be inferred that it was done, to protect his master’s property.
A case more in point is
Paraffine Oil Co. v. Berry,
93 S. W. (Tex. Civ. App.) 1089. In that action, a farmer’s pasture had been destroyed by a fire started by another on his own property where a crew was drilling for oil. There was no evidence of authorization, but one of the employees told the plaintiff that they had started the fire. The court observed:
“The master is liable for the acts of his servants within the scope of their employment, done in furtherance of the master’s business, and for the accomplishment of the object for which they were employed, though the particular act was unauthorized and unlawful. While there is no direct evidence going to show that the act of appellant’s servants in setting out the fire was within the scope of their employment, and done in furtherance of its business in which they were engaged, we think the circumstances shown by the evidence tend to establish such fact, and to show that such act was negligent, and caused the damages sued for to appellee’s property.”
The rule announced in Wood, Law of Master and Servant is quoted approvingly in
Seybold v. Eisle,
154 Iowa 128, 134 N. W. 578, as follows:
“ ‘The simple test is whether they were acts within the scope of his employment — not whether they were done while prosecuting the master’s business; but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By authorized is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.’ The same author said: ‘Without stopping to give further illustrations from the modern cases, it may be said to be well settled that the master is not only responsible for
the negligence or misfeasance or malfeasance of his servant in respect of the discharge of duties expressly imposed upon him, but also in all cases where the act of the servant is within the scope of his implied authority, and in determining this the nature of the employment, and the ends or purposes sought to be attained, are material elements, and the real test of liability. Prima facie, when the act is one which the master himself might have done, it will be presumed that it was an act within the scope of the servant’s authority, and the burden of proving want of authority rests upon the defendant.’ Wood on Master and Servant, p. 559.”
Some contention is made that the evidence indicated that this fire was set on June 27, and that the permit expired June 24. Whether the evidence established the date of the fire as June 27, we regard as immaterial, due to the fact that the reasonable inference is that the fire was set as a backfire to control the previous ones started by accident, and not set as a matter of right under the permit.
We think a
prima facie
case was made on behalf of the appellant, and that a nonsuit should not have been entered.
Judgment reversed.
Fullerton, C. J., French, Main, Mitchell, Parker, Beals, and Tolman, JJ., concur.