Burgess v. Carpenter
1870 S.C. LEXIS 3
S.C.
1870
Check Treatment

Lead Opinion

The opinion of the Court was delivered by

Weight, A. J.

It was claimed, by plaintiff, that the said Henry Burgess was his servant, inasmuch as he had contracted with him to raise a crop. *9The 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, was only to be exercised toward menial servants — domestics infra mccnia. It was a relation -which the common law classed with the elation of “parent and child.” The master was held to stand in loco parentis. No such relation existed between plaintiff and Henry Burgess. In Pennsylvania, in a case under the intestate law of April, 1794, in wdiich a preference is given to the wages of servants, the Courts have restricted the term “servant” used in the Act to “ persons employed in the house and about the intestate’s person,” in order that when disease had rendered the master helpless, there might bo an additional reason to attention on the pait of the domestic or menial. A case arose in which a bar-keeper brought suit for his wages, and Chief Justice Gibson and Justice Duncan, of the Supreme Court, decided that he had preference, under the law, because his position as bar-keeper brought him within the term “servant,” as his duties as such made him a domestic.—Boniface vs. Scott, 3 S. and R., 352.

Chief Justice Gibson says, in Pennsylvania none are called “servants whose persons are not subjected to the coercion-of the master, whether the business in which, they are employed be servile or not. No pierson to whom wages could be due for his services would endure the name, as it would be considered offensive, and a term of reproach. I take all who' are empiloyed for hire in the domestic concerns of the family, in whatever station they may be, to be servants, entitled to a preference under the Act. Neither do I apipre-heinl it to be necessary that the occupation of such persons should be exclusively confined to the family.

“ The clerk in a counting house, &o., is exclusively concerned with the occupiation or trade by which his employer gets his living; and there being nothing of a domestic cast in the nature of his services, he would not fall within the Act. If, in this country, a tavern were a separate establishment, unconnected with the domestic scene, I should suppose the plaintiff not entitled to a preference; but the contrary is the fact; with, perhaps, the exception of one or two large establishments in Philadelphia, the concerns of the family are so blended that it is impossible to separate them,” &e., &c.

*10In the same case, Justice Durfcan says : “ The term ‘ servants/ whose wages, under the Act of 1794, are ranked with physic and funeral expenses, to be paid, out of the intestate’s estate, has received a judicial construction in ex parte Measan, 5 Binn., 167. It has been held to embrace those only who, in common parlance, ar^ called servants; that is, as I understand the opinion of the Court, hirelings, who make a part of a man’s family, employed for money to assist in the economy of the family, or in matters connected with it.”

Henry Burgess being exclusively concerned in the cultivation of the soil and the proceeds arising therefrom, and there being no domestic'c.ast within the nature of his service, he does not fall within the class to which the term “servant” can, in any sense, be applied. Pie was a party to the contract, and liable for any breach of good faith on his part to comply with the terms of that contract; and plaintiff being also a party to the same contract, sustained the same relation to Henry Burgess that Henry Burgess did to him ; therefore, each was sui juris, and neither the servant of the other.

Henry Burgess being a free man, and competent to make a contract, is responsible for his own actions, and has the legal right of action against defendant for any private injury he has sustained at his hands. As each of the parties to the contract contributed his special portion of the means necessary to the production of the crop, and each was to receive his special portion after an equitable division, if there was a loss it was a common loss; and if the defendant committed an unlawful act which was the cause of such loss, then the parties to the contract, severally, have the legal right of action against the defendant for damages.

This Court, holding that on the statement of the plaintiff he had no cause of action, it made no difference at what stage of the case the Judge below ordered the non-suit, and his interposition, stated in the brief, did not prejudice the plaintiff.

The motion is dismissed.

Moses, C. J., concurred.



Concurrence Opinion

"VViXiLAKD, A. J.

I concur with the majority of the Court in their judgment on the ground that if the rule of the common law, sanctioning a suit by the master for an injury to the servant, is at all applicable as those relations exist in this country, still it would be necessary to extend the scope of the rule in order to embrace a case of one performing agricultural labor for a compensation fixed, *11to consist of a definite portion of the crop to be raised by the aid of such labor. In such a case the master has not an entire interest in the services of his laborer, but the hitter has an interest in the ratio of the share of the crop due him by the contract of employment. In this respect the relation is not such as can warrant the application of the rule of the common law contended for in this case. I do not regard the present case as rendering any expression necessary as to whether that rule is applicable in this country to a case of hiring for wages, nor as to the class of persons properly falling, within the designation of Servants hired for wages.