Daniel v. Swearengen
| Decision Date | 09 September 1875 |
| Citation | 6 S.C. 297 |
| Parties | DANIEL v. SWEARENGEN. |
| Court | South Carolina Supreme Court |
BEFORE COOKE, J., AT ABBEVILLE, APRIL TERM, 1874.
Action by Thomas A. Daniel against Ansel Swearengen and James Swearengen for enticing plaintiff's servants to leave his employment.
The complaint alleged that on the 1st of January, 1872, the plaintiff made contracts with three persons of color to serve him for one year from that date, two as laborers in his farm and one as a domestic and house servant; that on the 5th of February of the same year, the defendants, well knowing said persons to be the servants of the plaintiff, wrongfully enticed and persuaded them to leave the employment of the plaintiff and enter into the service of the defendants, and that a day or two afterwards plaintiff sent a written notice to one of the defendants informing him of the said engagement.
The answer denied, on information and belief, the contract with plaintiff alleged in the complaint. It also denied all knowledge on defendant's part of such contract, if one existed; admitted that on or about the 26th of January, 1872 they employed the persons named in the complaint, and that they were then in their employment as laborers on their farm and it also admitted the giving of notice as alleged.
At the trial the material allegations of the complaint were proved-the contract of service with the plaintiff being a verbal one.
At the close of plaintiff's case, defendants moved for a nonsuit on the following grounds:
1. That the domestic relation of master and servant does not exist in South Carolina.
2. That none of the legal incidents of that relation in England or elsewhere apply to laborers under contract with employers in South Carolina.
3. The contract between them, to be valid, must be in writing, and must be attested.
4. That the statutes of this State prescribe the only redress in cases of violation of the contract by either of the parties to it.
5. That the employer cannot maintain an action for enticing or otherwise persuading or causing a laborer, and especially an agricultural laborer, to leave his services, and thereby violate his contract.
The motion was denied.
The jury found for the plaintiff $600.
The defendants appealed on the grounds taken in their motion for a nonsuit.
Burt , for appellants:
The appeal rests mainly on the proposition that the domestic relation of master and servant does not exist in South Carolina.
The relation of master and servant, unlike that of parent and child, husband and wife, is not a natural relation, but is social and conventional.
Blackstone (vol. 1, p. 242,) says " it is founded on convenience." Chancellor Kent (lecture 32, part 4, p 258,) says:
" There seems to be, according to the law of England, a difference between menial and other servants, but I know of no legal distinction between them." - Kent.
Whether the relation be founded in convenience or on contract, wherever it exists it is regulated by law. Reciprocal rights and duties are prescribed by law. In England this relation is regulated by numberless statutes that are not of force in this State.
The recent amendments to the Constitution not only forbid slavery, but involuntary servitude, except as punishment, and invest with citizenship all persons born or naturalized in the United States, and provide that the right to vote as citizens shall not be denied or abridged on account of race, color or previous condition.-Revised Statutes, 17, 18; Amendments 13, 14, 15.
Revised Statutes, page 400, Section 9, provides
Section 12, page 491, provides the penalty of violation of such contracts by " failing, willfully and without just cause, to give the labor required by the terms of the contract, or in other respects refuse to comply with the conditions of such contracts," & c. If the offender be the land-owner, the penalty is not less than $50 or more than $500; if it be the laborer, the penalty is fine or imprisonment , according to the gravity of the offense.
The Statute of 1712 (Public Laws, 99,) enacts " that all and every part of the common law of England, where the same has not been altered or inconsistent with the particular Constitutions and customs and laws of this province, shall be of force in this province."
In King vs. Huntingdon , (1 Mills' S. C. Rep., 165,) the Court say: " The Act of 1712 contains rather a privilege than command to adopt the common law, except in its great and leading principles, and in effect we have only adopted it when we thought it reasonable and just."
Burgess vs. Carpenter , (2 S. C., 9.) Burgess, alleging that Carpenter was his servant, sued for damages done by loss of services, and was nonsuited.
The majority of the Court say: " The relation of master and servant, as it existed in England, was wholly different from employer and employee as it exists in this country."
Mr. Justice Willard concurred in the judgment, but did not think the case " required any expression necessary as to whether the rule (of the English law) is applicable to a case of hiring for wages, nor as to the class of persons properly falling within the designation of servants hired for wages." His assent is put on the ground that the employer in this case " had not an entire interest in the services of the laborer."
The Act of 1865, page 31, did establish and regulate the domestic relations of persons of color. Of that Act, Section 54 gave the master an action against another for enticing away, harboring, or detaining, or beating, or injuring his servant.
This Act was repealed February 12, 1872.-See Revised Statutes, 842. And owners of land and laborers are synonymous with master and servant. If the relation of master and servant exists in this State, the Revised Statutes contain the only regulation on the subject, and contemplate that the contract between them shall be in writing. Formalities of the contract are prescribed- that it shall be witnessed, the Trial Justice read and explain the contract to the parties; such contracts shall clearly set forth the length of time, the amount of money to be paid, and when to be paid,-which cannot attend a mere verbal agreement or contract.
The remedy for violation of such contract cannot be said to be cumulative if there be no other legal remedy.
The word master implies authority, control, command, the right to exact service. Servant implies obedience, subjection to the will of another. Interest in the services of another implies power to exact, to coerce their performance, property in another. A mere contract to perform a service confers no control of the will, no subjection to authority. Its violation is compensated by damages.
To recover damages for enticing away, harboring or injury, there must exist the right of constraint in the one and the duty of submission in the other.
This right does not attach even to the relation of parent and child.
These citations embrace all the law-constitutional, legislative and judicial-of this State applicable to the question under consideration.
If the relation of master and servant does not exist, the nonsuit should have been granted.
If laborers are not servants, and domestics are servants, then a new trial should be granted.
Thomson , contra:
1. That the relation of master and servant at common law, with its legal incidents, has long been recognized, and now exists, in South Carolina.-2 Statutes at Large, 413; General Statutes, 767; 10 Statutes at Large, 496, 497; General Statutes, 199, 27.
2. By the common law a servant may be hired either by deed or parol.- Smith's Master and Servant Law Lib., 35; 4 Bacon Ch., 557; Title Master and Servant.
3. That an action lies for enticing away, harboring or, after notice, employing the servant of another.-Smith's Master and Servant Law, 79; Blake vs. Lanyon , 6 Term. R., 221; Lawley vs. Gye , 20 Eng. Law and Equity Rep., 168; Hart vs. Aldridge , Cowper, 56.
4. That the interruption of an actual subsisting service by a third person gives the employer a right of action.- Keane vs. Boycott , 2 H. Blackstone, 511; Sykes vs. Dixon , 36...
To continue reading
Request your trial