Harriss v. Mabry, 23 N.C. 240, 1 Ired. 240 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 240, 1 Ired. 240

ABIGAIL HARRISS vs. JOHN P. MABRY.

A master is not liable for an actual trespass, which his servant may com" mit, without his previous command or subsequent assent; but he is liable in an action on the case for the tortious acts, negligence or unslcilfulness of a servant; acting in the prosecution of his service, or in the exercise of the authority he has given him, though not under his immediate direction.

In this case, which was for wrongfully and negligently permitting the plaintiff’s slave to pass in the defendant’s stage coach, without the permission of the plaintiff, whereby the slave escaped and was lost for some time to the plaintiff, and she was put to great expense, &c. and where the evidence was that the defendant’s drivers and stage agents were gitilty of gross negligence in taking the slave beyond Salisbury, where'her pretended pass was at an end, and permitting her to travel in defendant’s stages to Virginia, whereby the slave was lost to the.plaintiff, Heldby’the Court that the defendant was liable for the injury. - !

This was an action on the case, tried before his honor Judge Pearson, at Aitgust Term, 1840, of Cabarrus Superior Court of Law, for carrying a slave out of the State. It was admitted that the defendant and others were owners, as co-partners, of the Piedmont line of stages from Yorkville, South Carolina, through this State, to Prince Edward Court House, in Virginia; from which latter place there was another line of stages to Baltimore. One Morris stated that he was employed by" defendant and his copartners to drive the stage from Charlotte to Brummel’s, in Davidson county; that about the middle of December, 1838, a mulatto girl got into the stage at Mrs. Smith’s, a respectable lady who lives on the road about 8 miles south of Concord, in Cabarrus county. The girl paid her passage to Salisbury. At Concord, where the stage stopped a short time, Morris saw that the girl had a pass, signed by Mrs. Smith, permitting her to go to Salisbury; and he was there informed that the girl was a slave, the property of the plaintiff, who lived within a few miles of Mrs. Smith’s. Moitis-carried the girl openly and without any kind of concealment to Salisbury. She then paid her passage and was entered on the way-bill for Greensboro’. Morris then took her on to Brummel’s, about 35 miles from bury, and she continued on in the Greensborough stage. Mr. Harris stated that about the time mentioned by Morris, the mulatto girl, the property of the plaintiff, left the plaintiff’s house without her permission, and, understanding she had taken the stage, he pursued on in the next stage, and heard of her along the route, until he arrived at Baltimore, in Maryland; at which place he had her apprehended, and brought her back. At several places on the route, he called at the stage offices, and saw an entry on the way-bill, “ Mary Harris, a yellow girl.” At Greensborough, one Townsend,- at whose house the stage stopped, and whom he presumed to be the agent, from' the fact of his receiving the stage fare from himself and the other passengers, told him that a girl, answering the description, had taken her passage and gone on in the stage to Prince Edward Court House. Harris stated the plaintiff’s girl was absent from her service about three weeks; that he had kept an account of his expenses in- going to Baltimore and back, including that of the girl on her return, and the amount was $214, exclusive of his own services.

The defendan t’s counsel insisted that the action eould not be maintained, 1st, because it was for the ¿orí of aft agent for which he held the principal not liable. 2d,- because from the evidence in the case, it did not fall within any of the acts of Assembly in this State, and could not be maintained as an action at common law.-

But if the action could be maintained, he moved the court to charge the' jury as a rule of law; that the defendant was only liable to the amount of the loss of time and expense in going to Prince Edward Court House and back, and not for the residue of the trip, for which others were responsible:

Upon the first point the court charged that a principal was liable for' the ¿oris of an agent, while in his employment and doing his business. On the second, the court charged that, if the evidence was believed, the plaintiff had made out a cause of action'; that it is a principle of law that when one person caused damage to another by an act, which he had to ^0; was responsible for the injury; and in this case the defendant had no right to carry off the slave of the piajntiff' in the stage without her permission.

As to the damages^ the court charged the jury that questions of damages were in most cases left to the jury, because no rule could be fixed on by which to measure them. The •plaintiff had a right to expect full compensation for the injury caused by the wrongful acts of the defendant, and to be placed in the same situation as nearly as could be, as if the defendant had not interfered; that where there were circumstances of aggravation, juries were authorized to go further and give vindictive damages; but in this case, the plaintiff did not insist on vindictive damages, for it was not alleged that the defendant had acted wrong, knowingly and wilfully, that the fact, supposing it to be so, that the stage owners from Prince Edward Court House to Baltimore were liable to the plaintiff’s action, should not affect the amount of damages; for, where there were two wrong doers,, the person injured had- a right to his election, and to make either pay all the damages that would properly be considered the consequence of his act.

There was a verdict for the plaintiff. Damages $235. ■A motion was made for a new trial and overruled, a judgment for the plaintiff and an appeal by the defendant to the Supreme Court.,

Barringer for the plaintiff.

No counsel for the defendant.

Daniel, Judge.

The defendant’s counsel insisted in the Superior Court, that the plaintiff could not recover, because the action was for the tort of an agent, for which, he insisted, the principal was not liable. We are of opinion that the Judge correctly overruled this objection. It is true that the master is not liable for an actual trespass, which his servant may commit, without his previous command or subsequent assent, (McManners v. Cricket, 1 East. 107,) but a master is liable in an action on the case for the tortious acts. negligence or unskilfulness of a servant, acting in the cution of his service, or in the exercise of the authority he has given him, though not under his immediate direction 8 Durn & East. 188—1 L’d Ray. 264—Croft v. Allison, Barn. & Ald. 590—Paley on Agency 295, (2d Amer. Edit.,) Bush v. Steenman, 1 Bos. & Pul. 404. The declaration states that the defendant did wrongfully and negligently permit the plaintiff’s slave (without the assent of the plaintiff) to enter his stage coach, (in which he carried passengers for a. reward) and did carelessly and improperly transport the said slave from the county of Cabarrus to parts beyond the limits of this State; in consequence whereof the plaintiff sustained damage &c. The evidence was, that the defendant’s drivers and stage agents were guilty of gross negligence in taking the slave past Salisbury, (where her pretended pass was at an end) and permitting her to travel on in defendant’s stages to the State of Virginia. We think that the defendant was liable at common law to an action for the injury.

plain/, ) recover ail i such damaas may ed the con‘ sequence ot the wrongíhé^lfend“/t3g 33£¡je his s&r~J

Secondly, it was contended that, if the plaintiff could recover in this action, then the defendant should not be liable for all the damages she had sustained, in time lost and expenses incurred in sending an agent to Baltimore for the slave, as the slave left the defendant’s line at Prince Edward, in Virginia, and then entered on a different line, which conveyed her to Baltimore; and that the plaintiff could recover damages of the owner of the last line. On this point the Judge charged the jury that the plaintiff had a right to expect full compensation for all the injury sustained by the wrongful acts of the defendant’s servants in doing his ness, and to be placed in the same situation as she would have been in, if the defendant’s agents had not interfered: , i ° „ , , ' that the plaintiff had aright to recover ajl such damages, could properly be considered the consequence of the act the defendant’s agents, while in his service. We see nothing , . ° 1 ^ erroneous m this charge; for the jury might fairly consider that the first wrongful act, done by the defendant’s servants, was the substantial cause of all the injury the plaintiff had sustained. We think the judgment must be affirmed.

Per Curiam. Judgment of the Superior Court affirmed.