Echols v. Dodd

• Decision Date: 01 January 1857
• Citation: 20 Tex. 190
• Parties: JOHN ECHOLS, ADM'R v. ANDREW M. DODD.
• Court: Texas Supreme Court

20 Tex. 190

JOHN ECHOLS, ADM'R

v.ANDREW M. DODD.

Supreme Court of Texas.

1857.

A manager, superintendent or overseer, under whose control a hired slave is placed, has authority (in the absence of proof to the contrary) to chastise him for misconduct; and in doing so, acts strictly in the line of his duty to his principal.

It necessarily devolves on such manager, superintendent or overseer, by reason of his employment, to decide when chastisement is proper, and the amount proper to be inflicted.

If such chastisement be done so negligently, carelessly, unskilfully or recklessly, as to cause the death of the slave, clearly the rule of respondeat superior applies, and the principal is responsible to the owner of the slave, for his value.

Where a jury was waived and the facts agreed upon were simply, that such manager, superintendent or overseer, in the absence and without the knowledge of his principal, chastised the slave for alleged misconduct, and beat him so severely that he died therefrom, the court below having found for the defendant, the principal, the judgment was reversed, and rendered for the plaintiff, the owner of the slave.

It is said that it must be deemed the wilful and malicious act of the overseer, because the chastisement of the slave occasioned his death; and every homicide is presumed to be malicious, until the contrary appear. If the overseer were upon his trial for the homicide, that principle might apply; but it has no application in the present case. This is a case of civil, and not of criminal responsibility.

Appeal from Burleson. Tried below before the Hon. R. E. B. Baylor. Suit by appellant against appellee for the value of a slave.

The case was submitted to the judge upon the following statement:

1st. The plaintiff was, on the 1st day of January, 1856, as administrator of Henry J. Munson, lawfully seized and possessed of the negro slave Bill, described in the petition, the property of the estate of said Munson; and on the day and year aforesaid, the plaintiff, on a contract of hiring for the term of one year, delivered said boy to the defendant.

2d. The defendant was the owner of a saw-mill about 30 miles from the residence of the defendant, and the negro boy was hired for the purpose of being employed in and about said mill. One Williams was in the employment of the defendant, as manager and superintendent of the mill and hands, and during the absence of the defendant had exclusive authority and control.

3d. That while said negro was at work in and about the mill on the ____ day of February, 1856, said Williams chastised said negro for alleged misconduct, and beat him so severely that he died therefrom. 4th. That at the time said Williams beat said negro as aforesaid, the defendant was absent and had no knowledge of it. 5th. That said negro was reasonably worth the sum of $800.6th. That prior to the commencement of this suit, the plaintiff demanded a return of the negro from the defendant, and the same was refused. 7th. That Williams had, previously to being employed by the defendant, been overseer for several years in the neighborhood--had the reputation of being a good overseer.

Upon the foregoing case agreed, judgment was rendered for the defendant.

Sayles, for appellant. The principal is liable, in a civil suit, for the wrongful acts of his agent, in the course of his employment, although the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade them or disapproved of them. Story on Agency, sec. 452; Smith on Master and Servant, 152, 157; Philadelphia and Reading R. R. Co. v. Derby, 14 How. 468.

Chastisement for misconduct the overseer had the right to inflict; but it was his duty to inflict it with moderation, so as not to endanger life or limb. On the contrary, it was inflicted so immoderately, so cruelly, with such gross negligence, as to result in death. The case stated in Story on Bailments, p. 100, is analogous to the present. “If a hired horse is ridden by the servant of the driver so immoderately that he is injured or killed thereby, the driver is personally responsible.” The rule is laid down by some authors, that the master is not responsible for the wilful acts of his servant. This rule lacks precision and clearness; for every act that is not involuntary, is wilful; and a careful examination of the cases making that distinction, will show that they depend on the question whether the servant, at the time he did the act complained of, was acting in the course of his employment; or, in other words, whether he was or was not, at the time, in the relation of servant to the defendant. 14 How. 486.

The act of the overseer in this case was not wilful in the sense in which that term is used; that is, it was not done to accomplish any illegal purpose of his own. He did not chastise the slave to gratify his own malice, or for the purpose and with the intent to cause his death; but he chastised, as he lawfully might do, for disobedience of his orders, given in his master's business. It is not the chastisement of the slave of which we complain, but of the manner in which it was inflicted. The act was lawful; its mode of performance was unlawful. This, I conclude, is one correct test of the responsibility of the master or employer. If the servant could justify the performance of the act under the authority of the master, then the master is responsible for the manner of the performance. The distinction is clearly stated in Smith's Mercantile Law, p. 70: “But though the employer is answerable for the negligence of his agent while engaged in his service, yet he is not so for his wilful and malicious trespass; thus, if a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person and produce the accident, the master is not liable; though, if intending to effect his master's orders, he strike, but injudiciously, to extricate himself from a difficulty, that will be negligent and careless conduct for which the master will be liable, being an act done in pursuance of the servant's employment.”

If the overseer had wantonly and maliciously killed the negro, to effect some purpose of his own, the master would not have been responsible; but there is no evidence of a malicious intent in the act of the overseer; it was not done to effect any purpose of his own, but was done in strict pursuance of his authority. See also, Mills v. Ashe, 17 Tex. 295; Robinson v. Varnell, 16 Id. 382.

Lewis & Davis, for appellee. I. The responsibility of the principal grows out of, is measured by, and begins and ends with his control of the agent. 1 Parsons on Cont. 87. “On this ground rests the distinction, now well established, between the negligence of the servant and his wilful and malicious trespass--the act in either case being done in the course of his employ. For the former the master must answer; for the latter he is held not liable, unless the trespass is proven to have been authorized or ratified by him.” Ib. note (a a) and authorities cited. “In order to identify the principal with an agent who commits a trespass it is not sufficient to prove merely that the agent when he offended had the conduct of his master's lawful business; for although a principal is responsible for the negligence of his agent, he is not responsible for his wilful misconduct.” Angell on Carr. sec. 604. Hence it is that the principal is never liable for the unauthorized, the wilful or the malicious act of the agent. Story Agency, sec. 456; Kent Com. 2 vol. 284; McManus v. Crickett, 1 East. 108; 17 Mass. 508-510;Wright v. Wilcox, 19 Wendell, 343; Croft v. Alison, 4 Barn. and Ald. 590.

The court, in “Wright v. Wilcox” above cited, say: “The dividing line is the wilfulness of the act. If the servant makes a careless mistake of commission or omission, the law holds it to be the master's business negligently done. But it is different with a wilful act of mischief. To subject the master in such a case, it must be proved that he actually assented; for the law will not imply assent. In the particular affair there is then no longer the presumed relation of master and servant. The distinction seems to resolve itself into a question of evidence.”

The authorities cited above clearly and conclusively establish the principle, that although the master is ordinarily responsible for the tortious acts and misfeasances of his servant, when committed in the course of his employment;...