Kellar v. Garth , 45 Mo. App. 332 ( 1891 )

Ellis ok, J.

— This action is for an injury to plaintiff’s mule. He recovered below, and defendants appeal. Plaintiff hired his driver, team and scraper to defendants. The mule was injured while being driven by one of defendants’ servants. Defendants were in charge of the work. Their servant, with their knowledge and consent took the place of the man whom plaintiff and they had contracted should be the driver. Defendant, John Garth, testified as follows: “Father told me to have the pond cleaned out. I saw Kellar ( plaintiff) and asked him for his team and scrapers and driver to clean it out. He said I could pay $3 per day for the team, but that I would have to furnish a man to handle the scraper, so I got Monroe Jacobs and they went to work.” His testimony further showed that he superintended the work, and that this Monroe Jacobs exchanged places with plaintiff’s driver ; that is, Jacobs drove the team and plaintiff’s driver held the scraper ; that this was done not by his direction, but with his consent. He states, “I never said anything one way or the other about it, I allowed it.” By putting the team in charge of their own servant, they committed a tort in the nature of a conversion, and are liable, regardless of whether the accident happened through negligence of Jacobs while driving. If one hires a horse for a certain purpose and uses Mm for a different purpose, it is a conversion. Perham v. Toney, 117 Mass. 102; Hall v. Corcoran, 107 Mass. 251; Lucas v. Trimball, 15 Gray, 306.

So, I cannot see why it would not also be a conversion if the hirer substitutes some one else instead of him who is placed in personal charge by the owner. I think this logically follows from the rule announced in Story on Bailments, sections 188, 241, 413. See, also, Fox v. Young, 22 Mo. App. 386. The owner may know that his animals cannot be properly managed by anyone other than him whom he has selected. It is his right to keep them in charge of him whom he selects, and when this right is knowingly violated without cause or necessity the damage accruing during the period of such violation should be put upon him who makes the change. It fills the terms of the definition of a conversion. LaFayette Co. Bank v. Metcalf, 40 Mo. App. 502. And in this I make no distinction between what defendant permitted to be done in this case and if he had affirmatively ordered it to be done.

The judgment is affirmed.

All concur.