3 Denio 369 | N.Y. Sup. Ct. | 1846
The evidence established a temporary loss of service of Smith by the plaintiff, in consequence of the act of the defendant. Assuming that the act was tortious, does the law afford the plaintiff a remedy against the wrongdoer 1 It is a principle of the common law, that where a person sustains a loss or damage, by the wrong of another, he may have an action upon the case to be remunerated in damages. (1 Com. Dig. 168, tit. Action upon the Case, A.) It is also a general principle that an action lies for an injury done to his slave, servant, apprentice or minor child, in favor of the party who stands in place of a parent, by reason of which he has sustained a loss of service or been put to expense in nursing or providing medical aid. But for the direct personal injury the party upon whom it is inflicted is alone entitled to the action, and to the damages when recovered. The master’s or parent’s right of recovery rests upon the ground that he has been deprived of some service to which he was entitled, or has been put to expense.
It is supposed, by the counsel for the defendant below, that the law affords no remedy to the master for loss of service of his servant, when the relation between them is such that the servant is answerable to the master for the time lost; as when a hired servant has been beaten and thereby disabled; as in such case the servant bears the loss and is not entitled to compensation during the time he was so disabled. This distinction is recognized by the late Judge Reeve. ( Treatise, p. 376.) He says, “ If a servant be beaten by a stranger, so that any loss of service is incurred by the master, the master is entitled to his action of trespass, and with a per quod. He is not to recover for the battery itself; the damages for this belong to the servant; but for the damages to nimself, occasioned by this battery, in the loss of service. This doctrine obtains only in those cases where the loss of service
It is enough that the relation of master and servant exists between the plaintiff and the person who is disabled or prevented from performing the service he has contracted to perform, by the tortious act of. the defendant. It is not necessary, to sustain such action, to show that the person whose service has been lost by the plaintiff was either his apprentice or child. The reason and foundation upon which this doctrine is built seem to be, the property that every man has in the service of those whom he has employed, acquired by the contract of hiring, and purchased by giving them wages.
The point of the argument of the counsel for the defendant on this part of the case is, that the relation of master and servant cannot exist, quoad this action, except between apprentice and master, parent and child, or unless the plaintiff stands in the place of a parent to the one from whom service is due. It seems to. be conceded, when that relation exists, and the master has sustained loss of service by his servant being disabled by the tortious acts of the defendant, that the action lies. Chancellor Kent, in considering the relation of master and servant, subdivides the several' kinds of persons who come within the description of servants, into—first, slaves; second, hired servants ; and third, apprentices. In regard to the second description, the learned commentator says, “The relation of master and servant rests altogether upon contract. The one is bound to render the service, and the other to pay the stipulated consideration.” And again ; “ In England, there seems to be a distinction between menial and some other servants, but I know of no legal distinction between menial or domestic and other hired servants.” (2 Kent's Comm. 4th ed. p. 258 et seq.)
But it is argued, secondly, that this action cannot be supported because the defendant shut the door of the bank at the usual time and in the usual manner, and that if Smith was detained it was his own fault. The facts do not make such impression upon my mind. In a moral point of view, the facts plainly
Judgment reversed.