I am unable to concur in the prevailing decision.
The record shows that the fire caused by the sparks from the donkey engine at work in excavating a cut on the right of way was entirely under control before Bigler, a mere hook-tender and boss of the donkey engine crew, went to a tract of logged-off land of respondent, procured some tools that had been left there, and then, for some unexplained reason, started the fire, *Page 255 almost a mile distant from the operations on the right of way. There is no evidence that that fire was started by Bigler as a back-fire. In fact, as appellant itself states on page 5 of its opening brief:
"This fire [started by the engine] at one time jumped the river and was threatening the buildings of the witness Keesie, when Bigler and his men and a timekeeper for the company named Beck finally got control of it and put it out. Also, towards the end of the afternoon the men under Bigler and Beck started back-fires to protect the company's railroad trestles. While this crew were so engaged Bigler went off about a quarter of a mile [the undisputed record is, it was very nearly a mile by direct line] to a place northerly from the timber plot of plaintiff and set the fire that did the damage."
The fire was started by Bigler in section 23, belonging to respondent, for which, appellant proved, respondent had procured a permit to burn the forest debris between June 20 and June 24. The fire occurred, as overwhelmingly shown, on the "last Saturday in June" — or June 27, not on June 20. The permit to burn the logged-off land had then expired. It was the theory of appellant, as shown by the evidence it introduced and asserted on page 15, opening brief, that the
"company had obtained a permit from the state fire warden to burn its logged-off lands in section 23; . . . that the premises to be burned according to the terms of the permit between June 20 and June 24, 1925, were in an unlawful condition for burning, in that snags over twenty-five feet in height were still standing upon the property and that no provision had been made to protect the spread of fire."
It was not only the law, but the very terms of the permit, introduced in evidence by appellant, provided that such conditions and others should be met. It is *Page 256 to be presumed that that is why it let the permit expire.
It is not to be presumed, nor inferred from any lack of evidence upon the subject, that respondent intended to, or authorized, the commission of an unlawful act by setting its logged-off lands in section 23 afire, when it had no lawful right so to do. Nor is it to be presumed that any employee could assume on behalf of his employer to commit an act which would not be for the interest of the employer, and which the employer could not lawfully, either expressly or impliedly, authorize at the time. Hence, no express authority to start the fire to burn off section 23 being shown or to be inferred by the acts of respondent, none could be implied.
In Gregory v. Loose, 19 Wn. 599, 54 P. 33, concerning the authority to be implied from acts of an agent done in the course of the agent's employment in some other business, we approved the following statement:
"`But it is not to be inferred, however, that authority is, in any case, to be implied without reason, or presumed without cause. The implication must be based upon facts, and cannot arise from any mere argument as to the convenience, utility, or propriety of its existence.'" — citing Mechem, Story, and a case.
This court then said:
"But it is well settled in the law of agency that the extent of implied authority is limited to acts of a like kind with those from which it is implied, and that an implied power is never extended by construction beyond the obvious purpose for which it is granted." — citing texts and cases.
Applying these principles, it is clear that the construction of a railroad cut and protecting the property there situated belonging to respondent was the extent of the authority, real or apparent, delegated to Bigler. *Page 257
Therefore, this case falls within the line of cases, of whichMarlowe v. Bland, 154 N.C. 140, 69 S.E. 752, 47 L.R.A. (N.S.) 1116, is cited in the majority opinion as an example.
Other similar decisions by courts of last resort are: Collinsv. Alabama G.S.R. Co., 104 Ala. 390, 16 So. 140; Archuletav. Floersheim Mercantile Co., 25 N.M. 632, 187 P. 272.
Whatever may have been the motive of Bigler in going a mile away from the only work he was authorized to do, and setting out a fire upon the logged-off lands of his employer, it was not necessary to protect any of the property of respondent, was neither expressly nor impliedly authorized, and his tort ought never to be held to be the act of his employer.
For which reasons, I dissent. *Page 258