Evans v. Davidson

• Decision Date: 11 March 1880
• Citation: 53 Md. 245
• Parties: EVAN THOMAS EVANS v. THOMAS DAVIDSON.
• Court: Maryland Court of Appeals

53 Md. 245

EVAN THOMAS EVANS v. THOMAS DAVIDSON.

Court of Appeals of Maryland

March 11, 1880

Appeal from the Circuit Court for Cecil County.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiff offered the following prayers:

1. If the jury believe that the defendant's servant, in the course of his master's service, negligently killed the plaintiff's cow, the plaintiff is entitled to recover the value of said cow.

2. That if the jury find that the servant of the defendant killed the plaintiff's cow, by negligently knocking it in the head with a stone, while driving said cow out of defendant's field, and shall also find that said cow was at the time eating up the corn of the defendant, and had escaped into said field through a defect in defendant's fences, which he was bound to repair, and that at the time the said servant was in the defendant's employ, hired for a period of nine months to do general farm work, and had on the day of the injury complained of, been sent into said cornfield to cultivate said corn, and that the defendant was absent at said time, that then the plaintiff is entitled to recover provided the jury shall believe that the servant was acting in the course of his employment, at the time of the killing and that it was part of said servant's duty to protect his said master's corn by driving cattle from said field.

3. That it is not necessary to establish the master's liability for the acts of his servant, that he should direct the particular act, but if the jury believe that he was placed by his master, in his stead, to do the class of acts necessary to be done to protect his master's property, it will be sufficient authority from the master to authorize the servant to do an act within such class; and if the jury believe that the defendant's servant was sent in this case to cultivate his master's corn, in his master's absence and that the plaintiff's cow, together with about thirty other cattle, broke into said corn-field, and were eating up said corn of the defendant, and shall find that the said servant of the defendant was employed at the time by the nine months, to do general farm work for the defendant, that then there is evidence in the case from which the jury may find that in driving said cow of the plaintiff from defendant's corn-field, and protecting his corn, the servant was acting in the service of his master, with his master's authority.

The defendant prayed the court to instruct the jury:

That there is no evidence in this cause legally sufficient to entitle the plaintiff to recover.

The court (Robinson and Stump, JJ.,) granted the defendant's prayer, but rejected the plaintiff's prayers; the plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and IRVING, JJ.

Albert Constable and Henry W. Archer, for the appellant.

George A. Blake and W. E. Evans, for the appellee.

Alvey J., delivered the opinion of the court.

The only substantial question in this case is, whether the defendant, the present appellee, is liable for the wrongful act of his servant in killing the plaintiff's cow, while driving her out of the defendant's corn-field.

It appears in proof that the defendant was a farmer, and that his farm adjoined that of one Boulden; that he had employed on his farm negro Lewis, and two other negro hands, and that they were employed for a period of nine months, to do general farm work on the farm; that on the day the plaintiff's cow was killed, the defendant was away from home, and that the three negro servants or hirelings were at work in the cornfield cultivating the corn, when a herd of cattle consisting of about thirty head, among which was the plaintiff's cow, broke into the defendant's corn-field, where his...