Echols v. Dodd

Wheeler, J. We think the maxim, respondeat superior, applies in this case, by every test which the law has established to determine the responsibility of the master. The overseer was placed over the slave to direct his actions and control his conduct in doing his employer’s business. He was clothed with all the power and authority of the master, or owner, for that purpose. If the slave was guilty of misconduct, it was a duty imposed on the overseer, by his agency, to chastise him. In the infliction of such chastisement, he was acting strictly in the line of his duty to his master and in the performance of his master’s business. And his employment imposed on him the necessity and duty of judging for the master of the occasion for chastisement. It necessarily devolved on him, by reason of his employment, to decide when chastisement was proper, and to inflict it when necessary. In inflicting the chastisement then, he was acting strictly in the line of duty to his employer; it was an act done in the course of his employment, and contemplated by it; and the maxim qui faeit per alium faeit per se, applies.equally as if the overseer had performed the act in the presence and under the immediate command of his employer. He was doing his master’s business; the business which he was authorized by his employment to do. If, then, he did it so negligently, carelessly or unskilfully, or recklessly, as to cause injury to the property of another, clearly the rule respondeat superior applies. (Story on Agency, Sec. [195] 452; Henderson v. Railroad Company, 17 Tex. R. 560; 14 Howard R. 468.) It is clearly the law, that the master is not liable for the unauthorized, the wilful, or the malicious act or trespass of his servant, in those things which do not concern his duty to his master, and which when he commits he steps out of the course of his service. (2 Kent, Com. 259-60; 8 Term R. 533; 17 Mass. 508.) The case of Wright v. Wilcox, (19 Wend. 343,) cited by counsel for the appellee, was decided upon this principle. The Court say: “ It is difficult to infer from the evidence anything short of a design in Stephen, the servant, to throw the plaintiff’s boy from the wagon.” The whipping of the horses, if done for that purpose, was a turning aside from the master’s employment and the servant’s duty. It was a stepping aside from the master’s service, to do an act, which did in no way concern the servant’s duty to his master, but was the servant’s own wilful act in a matter entirely his own, and not his master’s. Hence the Court held it a plain trespass, for which the master was not liable any more than if his servant had committed any other assault and battery. By saying “ the dividing line is the wilfulness of the act,” the Court evidently mean, as it is afterwards expressed, “ a wilful act of mischief,” done by the servant, aside from his master’s business, of which it may be said: “ In that particular affair, there is, then, no longer the presumed relation of master and servant.” But while that relation subsists; while the servant is engaged in doing his master’s business, and has not turned aside from it to perform some act of his own disconnected with it, it is clearly held by this and all the authorities, that the master is responsible for the misfeasances, negligences, and torts of his.-servant; and this even though the master did not know of his servant’s act, or neglect, or it was done contrary to his express command. The Supreme Court of the United States in the Philadelphia and Reading Railroad Company v. Derby (14 Howard, 468,) lay down the doctrine thus : “ The rule respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or neglect, or even if he disapproved or forbade it; he is equally liable, if the act be done in the course of his servant’s employ [196] ment.” (Id. 486.) The Court say there may be found, in some of the numerous cases on this subject, dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination 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. (Ib.) This is the true test by which to determine the liability of the master in all cases like the present: Was he, at the time he did the act complained of, acting in the course of the service ? If so the master is responsible; but if not, if he had stepped out of the course of the service, the master is not responsible. This was the distinction taken in Wright v. Wilcox, cited above ; and the ground of the decision was, that in the act complained of, the servant had turned aside from the service to pursue an object of his own, disconnected from the service. Putting the case of a servant driving a wagon for his master, who should drive it violently over a man with intent to injure him, the Court say : “How the authorities deny that when the servant wilfully drives over the man, he is in his master’s business. They hold it a departure, and the going into the servant’s own independent business. And so they held the whipping of the horses purposely to throw the boy from the wagon in the case before them. But the present is a very different case. Here the servant, the overseer, was acting in the course of his employment. In chastising the negro for misconduct, he was exercising the authority confided to him by the master : he was doing his master’s, and not his own independent business, as in the case referred to. It cannot be said, as in that case, that he had taken up a new and distinct object of his own and was engaged in executing that. If he performed the service, which he was authorized to perform, in an improper manner ; if he did it so carelessly, negligently, unskilfully, or recklessly as to occasion an injury to the plaintiff, it is precisely the case in which all the authorities agree that the master is responsible; because it is the duty of the master to employ servants who are honest, skilful and careful. (2 Kent, 259 ; 1 Blacks. 431.) And this accords with our decision in the case of Mills v. Ashe. (16 Tex. R. 295.) It is said that it is to be deemed the wilful and malicious act of the overseer, because the chastisement of the slave occasioned his death; and [197] 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. The law will not presume that the act of the servant was an unauthorized, wilful and malicious trespass, and departure from the course of the service in which he was engaged for his master, because of the destruction of the life of the slave, and the consequent damage to the plaintiff. There is no evidence that the overseer intended to take the life of the slave; or that he intended to do more than to chastise him for misconduct, as he was authorized by his employment to do. It only appears that he was engaged in doing his master’s business ; but for the want of due and proper discretion, skill or care, or from some other unknown cause, he did it so very illy as to cause the loss to the plaintiff of his property. For that loss the defendant is responsible. If it were otherwise, there would be no case where the master would be responsible for an injury occasioned by the want of proper care, skill and circumspection in his servant to whose care and conduct he had intrusted the property of another. We are of opinion that the judgment be reversed; and the case having been submitted to the Court upon an agreed statement of facts, a jury being waived, such judgment will be here rendered as the Court below ought to have rendered. Reversed and reformed.