Burgess v. Carpenter
| Decision Date | 16 May 1870 |
| Parties | W. R. BURGESS, PLAINTIFF IN ERROR, v. W. R. CARPENTER, DEFENDANT IN ERROR. |
| Court | South Carolina Supreme Court |
Plaintiff hired laborers to make a crop on his farm, under a contract by which the laborers were to have one third of the crop for their services, the plaintiff retaining two-thirds for himself. In June, one of the laborers was shot and so severely wounded that he was disabled from working in the crop for several weeks, and, in consequence thereof, as it was contended, the crop made was much less in quantity than it otherwise would have been: Held , That plaintiff had sustained no legal injury which gave him a right of action against the party who inflicted the wound.
The common law gives the master no right of action against a third person for an injury inflicted upon his servant causing loss of service, except where the servant is a menial one- semble .
BEFORE GREEN, J., AT MANNING, JANUARY, 1870.
The case was brought up by writ of error. It was an action on the case brought to recover damages, which plaintiff sustained by reason of loss of service of a hired servant, a colored man named Henry Burgess, employed as a ploughman by plaintiff for the year 1866, the said servant having been disabled by reason of a gunshot wound, charged to have been inflicted by defendant.
Dr. T L. Burgess, witness for plaintiff, testified: That Henry Burgess was wounded about 7th June, 1866, by a gunshot, and that he took him to his house and nursed him for several weeks, and supported him while he was unable to work; that Henry Burgess was unable, in consequence of his wound, to do any work until some time in August. It was worth two or three dollars per month to furnish food for him. Henry Burgess was a ploughman, and, in consequence of his being unable to work, the crop was seriously damaged, and cut short at least $400, the plow being stopped during his sickness. Plaintiff did not hire, or try to hire, any one in his place. Scarcely a living was made that year. Henry Burgess was hired for what was known as a share in the crop; one-third of the crop being divisable amongst the laborers as their pay-plaintiff furnishing stock and provisions, and receiving two-thirds of the crop, and the laborers one-third amongst them.
The horse used by Henry Burgess was not worked in the crop while he was sick and disabled, and was fed by plaintiff.
At this stage of the trial, His Honor held that it was useless to go on and connect the defendant with the shooting, because the contract to pay Henry Burgess a share in the crop made him a copartner, and not a servant; and that plaintiff had no right of action against defendant; and he ordered a non-suit.
Plaintiff assigned the following grounds of objection to the ruling of His Honor:
1. Because, it is respectfully submitted, His Honor erred in ordering a non-suit upon the ground that the plaintiff had no right of action against defendant, because plaintiff's servant was to receive a portion of the crop for his services.
2. Because His Honor erred in holding that the plaintiff and the servant, for the loss of whose services the action was brought, were co-partners, it not having been clearly established what were the terms of the contract under which the said servant was employed.
3. Because His Honor erred in ordering a non-suit when plaintiff had examined but one witness, and before he had been permitted to go to trial.
4. Because His Honor ordered a non-suit when, it is respectfully submitted, he had no right to do so for any cause.
Fraser , for plaintiff in error.
Galluchat , contra.
This was an action brought to recover damages which plaintiff claimed to have sustained by reason of a gunshot wound, charged to have been inflicted by defendant upon one Henry Burgess, who was a contractor with plaintiff, in common with other persons, for a share of the crop, which all parties to the contract were laboring to raise at the time the gunshot wound was said to have been inflicted upon the said Henry Burgess.
It was claimed, by plaintiff, that the said Henry Burgess was his servant, inasmuch as he had contracted with him to raise a crop. The relation of master and servant, as it existed in England, was wholly different from the relation of employer and employed as it exists in this country. At common law, in England, the master might bring an action for damages against a third party for any loss he might have sustained by reason of such party unlawfully injuring or interfering with his servant or servants; but this power, given the master,...
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