Heygood v. State
59 Ala. 49
Ala.
1877
Check Treatment
MANNING, J. —

Thе objection alleged to the proceedings in the cause is that the ownership of the property charged to have been stolen, is in the indictment ascribed to one Satterwhite, while the еvidence shows that he was only superintendent, for another, of the premises from which it was taken.

A bаilee or person who has a special property in a chattel, may be alleged in an indictment for the larceny of it, to be the owner, when it was taken from his posssession — but not a .servant. A servant’s possession is considered as that of the master or employer. The distinction though, between these relations is not always clear. It has also been suggested that, as larceny is always aсcompanied by a trespass (except in some cases of a peculiar kind, as larсeny by a bailee), any person — -and only a person — who could maintain the action of tresрass for the taking ‍‌​‌‌​​​‌‌‌‌​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​‌‌‍of a chattel, may properly be alleged as the owner of it, in an indictment tоr the larceny of such chattel. And this is probably a good rule. But here, too, the question whether a person in the situation of Satterwhite could maintain trespass for the taking of the corn, alleged to have been stolen, is not free from difficulty. A servant can not maintain that action for a taking of the goods of his master. So the two questions seem in this case to be resolved again into one: Was Satterwhite a servant, or not, within the legal signification of the word ?

*51It was held in Massachusetts, that if a persоn is engaged under a contract “ in an independent operation, not subject to the directiоn and control of his employer, the relation is not regarded as that of master and servant, but is said in modern phrase, to be that of contractor and contractee.” Forsyth v. Hooper, 11 Allen, 419. In other cases, the rеlation may be that ‍‌​‌‌​​​‌‌‌‌​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​‌‌‍of bailor and bailee. This was held in Hare v. Fuller (7 Ala. 717), in which, “ it was proved that the plaintiff was the agеnt o'f one rhinehart, and as such, had the management and possession of his stock of hogs, they not bеing penned up : rhinehart had left the country, leaving the plaintiff to control and take care оf them.” This court considered the plaintiff to be a bailee, and entitled to maintain trespass for injuries done to the hogs. See also, Cox v. Easley (11 Ala. 363), where, in opposition to rulings in Massachusetts and New York, it was herе held that a person to -whom a sheriff delivered goods- taken by him in execution, upon a contract with security ‍‌​‌‌​​​‌‌‌‌​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​‌‌‍to have them forthcoming on the sale day, to be sold, had such a property in them as enabled him to maintain trespass against a third person for taking them away : Whence, contrary tо Commonwealth v. Morse (14 Mass. 217), it follows, that such a bailee may properly be averred to be the owner of such goods in an indictment for stealing them. In these cases, the doctrine, is recognized that a servant is not to be сonsidered as having a special property. Was Satterwhite an employee of that сlass ?

A servant is one who is engaged not merely in doing ‍‌​‌‌​​​‌‌‌‌​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​‌‌‍work or services for another, but who is in his service, usually upon оr about the premises or property of his employer, and subject to his direction and control therein, and who is, generally liable to be dismissed.

Hence a person, whom a railroad comрany employs to get out crosS-ties, or build a section of their road, according to certаin specifications and at a certain price, or whom a planter employs to build a house, or dig a ditch of certain dimensions upon terms agreed upon, is not a servant of his employеr. But persons who are engaged as conductors, or other employees ‍‌​‌‌​​​‌‌‌‌​​​​‌‌​‌‌‌‌​‌​​‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​‌‌‍of railroad-trаins, to assist in running them, and a person who is employed as superintendent of the business of a railroad company according to such schedules and arrangements or directions, as the compаny may from time to time prescribe, come within the definition laid down, and may properly be regarded as servants, within the legal meaning of that word.

*52Ia like manner the superintendent for another of a рlantation of the latter, is we think properly a servant of his-employer. We understand him to be an оverseer, one who is employed to carry on the business of a plantation according to the directions from time to time given by his employer, being bound in that capacity, to look well after ¡and take good care to promote — the interests of the latter. And it bas never, that we are aware of, been the practice, in legal proceedings, to regard an overseer as having a special property in the things of which be bad such supervision and control, or to сonsider him as authorized to sue in respect of them, in his own name.

According to our view of the law, thе corn alleged to have been stolen by appellant, ought to have been described as property of Jones, the administrator of the estate to which it belonged.

Let the judgment be reversed and the cause be remanded.