On Motion for Rehearing.
ROBERTS, J.Appellant in its motion for rehearing insists that the court should have considered the alleged error on the part of the trial court in refusing to give appellant's requested instruction No. 2. -It concedes that the specific exceptions to the instruction were not incorporated into the bill of exceptions, but argues that the instruction itself showed the notation, “defendant excepts.” If it be conceded that the instruction is here for consideration, the action of the court in refusing to give it must be upheld because the instruction does not correctly state the law. It reads as follows:
“The defendant In this ease is a corporation and as such is responsible for a willful trespass committed by it under the same rules of law and under like circumstances as an individual would be for a similar trespass; but the defendant, being a corporation can only act by and through its duly appointed and authorized officers and agents. And in this case, before the jury would be authorized to find that the defendant know the location of plaintiff’s lands, they must believe and find from the evidence that actual knowledge of the location of said lands was possessed by some governing officers or agent of the defendant, who had authority to represent the defendant with respect to that particular matter, and that the defendant, after the receipt of such knowledge by such officer or agent, either caused its sheep to be driven upon such lands or failed and neglected to remove them therefrom.”
The question in this case was as to Avhether the agent or servant in charge of the sheep was acting within the scope of his employment in driving the sheep upon the lands of the appellee, or refusing to remove them therefrom upon notice. If he Avas so acting, the master was liable for his acts, whether done through negligence, Avantonness, or wilfullness.
Apellant says in its brief that it has been unable to find many cases passing upon the precise point which it makes, biit cites some cases from Alabama which it is claimed support the law announced in the instruction.
[4] In Labatt’s Master & Servant (2d Ed.) § 2238 et seq., will be found a very interesting discussion of the question, from which it appears that the rule, for which appellant here contends, a half century or so ago was followed by the courts of England and some of the courts of the United States; but the author shows the departure from this rule and the adoption of the present rule adhered to now by practically all of the courts— that the master is responsible for the acts of his servant, committed while the servant is acting in the execution of his authority and within the scope of his employment. And this rule was approved by this court in the case of Childers v. Southern Pacific Co., 20 N. M. 366, 149 Pac. 307.
The remaining grounds of the motion for rehearing were fully considered in the original opinion.
The rehearing will be denied, and it is so ordered.
Parker, C. J., and Raynolds, J., concur.