20 Tex. 190 | Tex. | 1857
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.
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
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.