This section contains the nature of the case and procedural background.

Kirby (P) worked as a bookkeeper for Foster (D). Fifty dollars was found missing. D blamed P and withheld fifty dollars from P's pay. Following advice from counsel, when D gave P money to pay the employees, P took his share of his pay, including the fifty dollars, and returned the balance to D. D grabbed P and tried to take the money back, injuring P. P sued to recover damages that resulted from the altercation with D. The trial court ruled in favor of P. D appealed, excepting to the jury instructions and requesting a new trial. D claimed that based on the master-servant relationship when P took the money he committed an act of conversion and D was justified in using force.

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